The Bar Training Course

Full Time 2022/2023

College of Business and Law

____________________________________________

CIVIL LITIGATION & EVIDENCE

SGS 10

Case Management,
Sanctions, Strike Out & Discontinuance

___________________________________________

ANSWERS TO MCQ/SBA

UWE, Bristol Law School

UWE, Bristol Law School The Bar Training Course

TASK 3: MULTIPLE CHOICE / SINGLE BEST ANSWER QUESTIONS

1. After reading the claim form and particulars of claim on a court file, District Judge
Lewis forms the provisional view that the claim should be struck out. He directs that
there be a hearing at which the parties may attend and make submissions before
making an order.

The following statements purport to relate to the judge’s powers regarding strike
out.

Which one is correct?

[A] The judge has the power to make an order striking out the claim on his own
initiative. However, if he chooses not to make the order but instead hold a
hearing for parties to make representations in relation to the proposed strike
out, he must give the parties likely to be affected by the order at least three
days’ notice of the hearing.

[B] The judge has no power to make an order striking out the claim on his own
initiative and must wait for the Defendant to make the appropriate
application. A hearing will then be listed for the parties to attend and make
representations

[C] The judge has the power to make an order striking out the claim on his own
initiative. If such an order is made, the party affected by the order can
appeal against it but has no right to apply to have it set aside or varied.

[D] The judge has no power to make an order striking out the claim on his own
initiative. However, he has the power to direct that there be a hearing for
parties to make representations in relation to the proposed strike out. He
must give the parties likely to be affected by the order at least three days’
notice of the hearing.

FEEDBACK - Correct answer A,

The court is able to exercise its powers on an application or on its own initiative (CPR
3.3(1). The court must give 3 days’ notice. If an order is made to this effect by the
court on its own initiative the party affected by the order may apply to have it set
aside, varied or stayed. [D] and [B] are incorrect for the reasons [A] is correct in that
the court has the power to make such an order. [C] is partly correct however the
party affected by the order can make an application to have it set aside or varied.

2. Gemma is a party to fast-track claim and is unable to comply with a direction for
witness exchange, as she needs an additional week to finalise her witness statement.
The trial date has been fixed for 3 months hence.

What is the best advice to give Gemma?

[A] She should seek her opponent’s written agreement to a variation of the
timetable.

2
UWE, Bristol Law School The Bar Training Course

[B] She must apply to the court for a variation of the timetable.
[C] She should make an application for relief from sanction and for a variation of
the timetable.
[D] She should serve her incomplete statement, with a letter confirming that an
amended statement will be served shortly.

Feedback – the correct answer is [A]

See CPR 2.11 ‘Time limits may be varied by the parties’

[B] The mischief word is ‘must’ –- an application to the court is always a

possibility but it is not a requirement in the circumstances. CPR 2.11 provides
that: "Unless these Rules or a practice direction provide otherwise or the
court orders otherwise, the time specified by a rule or by the court for a
person to do any act may be varied by the written agreement of the parties".
CPR 3.8 allows the parties to extend that time for up to 28 days as long as it
does not put at risk any hearing date. Hence the best course of action in the
first instance is simply to ask Graham’s written agreement to a variation of
the date.
[A] This is the correct and best advice as it follows CPR 2.11. The date for
exchange of witness statements is a date which can be varied by agreement
between the parties.
[C] is wrong advice - to seek relief from sanction at this time would be wrong as
the date for compliance has not passed (see CPR 32.10 and CPR 3.8).
[D] This is obviously wrong advice – this will not amount to mutual exchange as
she will be subsequently amending her statement (which she might do in
contemplation of her opponent’s statement).

3. Alfred issues a claim for personal injury against Humphrey following being run
over by him in his ride-on mower. Humphrey files and serves his defence within the
relevant time. Alfred then discontinues the claim following an apology from
Humphrey and a promise to get rid of his mower, which he does. However, two
months later Alfred discovers that the original incident had caused damage to his
greenhouse as well as the personal injury to him.

Which one of the following statements is correct?

[A] Alfred can issue fresh proceedings for a new claim for damages against
Humphrey

[B] Alfred cannot commence new proceedings against Humphrey, unless the
court first gives permission.

[C] Alfred cannot commence new proceedings against Humphrey under any
circumstances.

[D] Alfred should make an application to set aside notice of discontinuance in

relation to the first claim and add the additional claim to it.

FEEDBACK – B is the correct answer

A claimant who discontinues after a defence has been filed is not allowed to
commence new proceedings against the same defendant arising out of the same or

3
UWE, Bristol Law School The Bar Training Course

substantially the same facts as the original claim, unless the court first gives
permission for the second claim to be issued (CPR 38.7). If permission is granted,
the court will normally give directions regarding the substantive second claim. (CPR
25.2(3)).

4. Arnand has commenced proceedings against Sarika around an unpaid invoice for
gardening services in the sum of £20,000. Directions were given by the court that
each party exchange witness statements of fact by 4 pm on Friday 9 December,
failing which any defaulting party would not be entitled to rely on that evidence of
fact at trial. A hearing date has not yet been fixed.

It is now Friday 2 December. Arnand requires an additional 2 weeks from today’s

date to finalise his witness statements. Which of the following is the best advice to
give Arnand to ensure that he can rely on the witness statements at trial?

[A] Arnand should wait until the 9 December had passed and then apply to the court
for relief from sanctions under CPR 3.9, as he is unable to comply with the order of
the court.

[B] Arnand should seek written agreement from Sarika now, for an extension of time
of 14 days to serve his witness statements.

[C] Once the 9th December has expired, Arnand should seek the written agreement
from Sarika of an extension of time of up to a maximum of 28 days, provided that
the extension does not put the hearing date at risk.

[D] Arnand should apply to the court now for relief from sanctions under CPR 3.9,
as he is unable to comply with the order of the court.

B is the correct answer and correctly reflects the rule at CPR 3.8(4), which provides
that parties can agree an extension of time provided by the court – even if attached
to a sanction, provided that the agreement is made in writing, before the time
expires (“prior written agreement”), for a maximum of 28 days and also provided
that “any such extension does not put at risk any hearing date”. Students might be
put off by the fact that it refers to only a 14-day extension, but we are told on the
facts that only a 14 day extension is required. Arnand is under no obligation to ask
for the full 28 days.

A is not the best advice as it ignores the fact that any such extension can be agreed
with the other party. It would be dangerous to take this approach as whether or not
relief is granted is at the discretion of the court – if not granted and the sanction
takes effect (CPR 3.8) Arnand would not be able to rely on any witness statements
which would clearly hamper his ability to prove his case. D is not the best advice, as
although it is open to Arnand to do this, CPR 3.8(4) was expressly included in the
CPR to avoid taking up the courts time and resources in situations such as this,
where agreements could appropriately be reached between the parties – it may not
be considered proportionate or necessary and might incur an adverse costs order. C
is wrong as it ignores the fact that any written agreement to an extension has to be
made prior to the time expiring.

4
UWE, Bristol Law School The Bar Training Course

5. Which of the following statements correctly describes the court’s approach to

dealing with an application for relief from sanctions?

[A] the need to deal with the case justly and at proportionate cost, including the
need to ensure that the parties are on an equal footing; saving expense;
dealing with the case proportionately; ensuring it is dealt with expeditiously
and fairly; allotting it the appropriate share of the court’s resources; and
enforcing compliance with rules, practice directions and orders.

[B] the need to deal justly with the application, taking into account all of the
circumstances of the case, including the need for litigation to be conducted
efficiently and at proportionate cost and to ensure compliance with rules,
practice directions and orders.

[C] how promptly the party has made its application, whether the party has real
prospects of succeeding on its statement of case or whether there is some
other compelling reason that the matter ought to continue to trial.

[D] the seriousness and significance of the breach, the reason for default, and all
of the circumstances of the case to enable the court to deal justly with the
application, including the need for litigation to be conducted efficiently and at
proportionate cost and to ensure compliance with rules, practice directions
and orders.

Feedback – [D] is the correct answer.

The answer reflects the 3 stages under Denton when applying CPR 3.9.

3.9.3-3.9.6 (p163 - 165)– it may look like B is correct as it recites the rule at 3. 9 but
we need to bring in and apply the commentary.

6. Franklyn has issued a claim for breach of contract in the county court. The claim
has 3 issues: on issue 1, a claim for £15,000, he obtained summary judgment
following the filing of the acknowledgment of service; on issue 2, a claim for
£10,000, the defence now filed admits liability; issue 3, a claim for £7,000, remains
in dispute.

To which track is the claim likely to be allocated?

[A] To the multi-track, because the total value of the claim when issued was
£32,000.

[B] To the fast track because the court will disregard the summary judgment
award.

5
UWE, Bristol Law School The Bar Training Course

[C] To the fast track, because the court will disregard the sum admitted.

[D] To the small claims track, because the court will disregard both the sum
admitted and the summary judgment when calculating the value of the
claim.

Feedback – the correct answer is D.

CPR 26.6 – the small claims track is the normal track for

(a) any claim … where.

(i) the value of the claim is not more than £10,000.

So what is the value?

CPR 26.8 – ‘matters relevant to track’.

CPR 26.8(2) ‘It is for the court to assess the financial value of a claim and in doing so
will disregard…

(a) any amount not in dispute’

For clarification that this includes an order for summary judgment:

26PD 7.4 “any amount not in dispute”

7.4 (2) ‘Any sum … for which judgment has been entered (for example a summary
judgment)…’

7.Which one of the following is not a case management power available to a District
Judge when considering how to deal with a case at a case management conference
in a fast track housing disrepair claim?

[A] Direct that an issue be excluded from consideration.

[B] Give judgment on a claim after a decision on a preliminary issue.

[C] Referring the parties to submit to the court mediation service.

[D] Consolidate proceedings.

FEEDBACK - correct answer C

The other options available are set out in the list of the court’s general case
management powers in CPR 3.1. Whilst a court can enquire about the possibility of
mediation or assist the parties if e.g. a stay is required to facilitate a period of
mediation, there is no power to require the parties to submit to mediation as an
alternative to the court process and although CPR 26.4A does provide for the court

6
UWE, Bristol Law School The Bar Training Course

to refer a dispute to mediation in certain circumstances ( namely where the parties

indicate on their directions questionnaire that they agree to mediation) this would
normally apply in the smalls claim (and we are told that this is in the fast track) and
would also not apply to personal injury claims and housing disrepair claims – and this
is the latter) - therefore C is the correct answer as it is not part of the available case
management powers.
Note CPR 3.1(8) and 3.1.12 which allows the court to contact the parties of its own
motion to monitor compliance – and the requirement to respond promptly! This is
perhaps more likely to arise in a multi-track case which may be docketed to a single
judge for the purposes of case management but can apply in any claim.

UNSEEN MCQ’S

1. In which one of the following circumstances would a claimant not have to seek
permission to discontinue its claim?

[A] Where any party has given an undertaking to the court

[B] Where there is more than one claimant

[C] Where there is more than one defendant

[D] Where an interim injunction has been granted in relation to the claim

FEEDBACK – C is the correct answer

CPR 38.2(1) provides that generally a claimant has the right to discontinue at any
time without seeking permission from the court first. However, there are
circumstances where permission from the court is required before a claimant can
discontinue their claim (CPR 38.2(2)). E.g. where a party has given an undertaking
to the court or where an interim injunction has been granted – hence A and D are
wrong. And permission is required from every other claimant or the court where
there is more than one claimant, hence B is incorrect. CPR 38.2(3) provides that
where there is more than one defendant, the claimant may discontinue all or part of
a claim against all or any of the defendants.

2. The Roundhouse Art Gallery is the defendant in a breach of contract claim brought
by Josephine Seale. Liability is denied and the value of the claim is £ 25,682. The
value is disputed by the Roundhouse Gallery. The court sent out a notice of proposed
allocation to the fast track and both parties have recently sent completed directions
questionnaires to the court.
In the agreed draft order submitted by the parties, which accompanies the directions
questionnaires, they indicate that the time estimate for this case is two days as there
are 8 witnesses in total as the dispute is a factual one. Expert evidence is sought by
the Roundhouse Gallery, and there are some complex legal issues to be considered.
Both parties have indicated that they consider the matter is appropriate for the fast
track.

To which track is the court most likely to allocate this claim and why?

7
UWE, Bristol Law School The Bar Training Course

It is most likely that:

[A] The claim will be allocated to the multi-track as the trial time estimate is in
excess of one day and so cannot be heard in the fast track.

[B] The claim will be allocated to the fast track as although the value of the claim
is just over the threshold of the multi-track, the views expressed by the
parties are of paramount importance when being considered by the court.

[C] The claim will be allocated to the fast track as it is just and proportionate to
do so in these circumstances.

[D] The claim will be allocated to the multi-track as there are complex legal
issues, the trial time estimate is in excess of one day, expert evidence is
required and so the court would be justified in considering that the claim
could not be dealt with justly on the fast track.

FEEDBACK – correct answer is D. It is most likely that the claim will be allocated
to the multi-track as there are complex legal issues, the trial time estimate is in
excess of one day, expert evidence is required and so the court would be justified in
considering that the claim could not be dealt with justly on the fast track.

There are a number of factors to consider when allocating to the fast or multi.
The value of the claim puts it just in the multi-track as defined in CPR 26.6 (4) and
(5). However, the time estimate of two days suggests that it may be appropriate to
consider allocating to the multi-track. CPR 26.6 (5)(a) states that the fast track is the
appropriate track if it is likely to last for no longer than one day.
It is important to consider the PD29 paragraph 9.1. and the factors set out there
when the court is deciding whether to allocate in the fast or the multi-track. Note
(paragraph 9.1(3)(c)) – that the fact that the trial might last longer than a day is not
necessarily conclusive reason to allocate to the multi-track – note paragraph 9.1(2)
which states that the court will take into account the extent to which expert evidence
is necessary and whether the trial will last longer than one day and note paragraph
9.1(1) which states that when deciding whether to allocate to the fast or multi track
– the court may allocate to the fast track – unless it believes that it cannot be dealt
with justly on that track.
We are told that the facts are complex – and that expert evidence is needed – it is
clear that it can’t be dealt with in one day and so it would seem that it would be
appropriate to allocate to the multi-track.

A is wrong as it suggests that a trial of more than one day cannot be heard in the
fast track – when it can. The length of the trial is only one factor of the case.
B is wrong, as although the views expressed by the parties are one of the factors to
be considered (and referred to in CPR 26.8 (h), this factor is not given more
importance than any of the other factors and the court can do what it likes.

C is wrong for the reasons set out as to why D is correct ! There is no test referred
to in allocation which considers whether it is “just and proportionate to do so “.

Note to students – this questions is slightly changed from the version in the unseens.

8
UWE, Bristol Law School The Bar Training Course

3. Gino was served with a claim form by Tony, his ex-landlord. He seeks unpaid rent
from a tenancy agreement between them which ended in June 2020. Gino tells you
that this claim has been previously litigated and determined at trial in September
2022, following which Tony’s claim was dismissed. Gino wishes to make an
application to strike out Tony’s claim. What is the correct test for determining Gino’s
application to strike out Tony’s claim?

[A] The court must strike out Tony’s claim if it appears to disclose no reasonable
ground for bringing it.

[B] The court may strike out Tony’s claim as an abuse of process or because it is
otherwise likely to obstruct the just disposal of proceedings.

[C] The court must strike out Tony’s claim as an abuse of process or because it is
otherwise likely to obstruct the just disposal of proceedings.

[D] The court may strike out Tony’s claim if it appears to disclose no reasonable
ground for bringing it.

FEEDBACK – correct answer is B

[A] is incorrect for two reasons: the wording of r.3.4(2)(a) is may and not must;
secondly, this is a recognised example of an abuse of process under r.3.4(2)(b) and
is not, therefore, an example of a case which has no legal basis. [B] is the correct
answer. It reflects the wording of r.3.4(2)(b) and the fact that the scenario is based
on a recognised abuse of process; whether as an attempt to re-litigate a decided
issue (see examinable commentary at first three paras of 3.4.5 WB 2022). [C] is
incorrect because the wording of r.3.4(2)(b) is may and not must. [D] This is
incorrect because whilst the test is correctly expressed, it does not apply here for the
reasons given at [B] above. There is a legally recognisable claim. However, an
attempt to re-litigate is a recognised abuse of process.

-------------------------------------------------------------------------------------------------------
-