The Civil Case Studies

In this section you will find documentation relating to three interim applications in the fictional case of Landice and Landice v Wheeler. Each application is preceded by a memorandum explaining the task (see Memorandums A, B and C).

is relevant as well as some relevant case law (you can find the civil procedure rules at www.gov.uk). You should also read the accompanying documents as they may lead you to consider further procedural rules and cases. You should also make use of the helpful tables on procedural rules and evidential rules found in Appendix A and B. You may also find it helpful to re-read Chapters 2 and 3 for a reminder of legal research, case strategy and argument construction techniques.

You will find suggested guidance on possible arguments that can be advanced in support of each application in Part C. You should however try to work through the exercises first and prepare your own arguments drawing on some of the skills learnt in Part A.

You might approach the exercises in the following way:

• Read all documents through once.

• Read through all documents a second time but this time highlight any key words or sentences that you think are important.

• Read any civil procedure rules mentioned in the documentation.

• Consider any additional rules that might be relevant (refer to Appendix A).

• Read any cases mentioned in the documentation.

• Consider whether any other cases might be relevant - for example, ask yourself, do the cases that are referred to in the documentation lead you to a research trail of other cases/legislation?

• Start to construct possible arguments - you might want to use a ‘strengths and weaknesses' table similar to the Table discussed in Chapter 2.

• Practice making your submissions aloud without heavy reliance on a script (cue or prompt cards are acceptable).

6.6.1 Exercise 1 (Setting Aside Default Judgment)

The following exercise relates to an application to set aside a default judgment. A default judgment can be entered by a claimant when a defendant has failed to file either an acknowledgement of service (‘AOS') or a defence within the prescribed period of time under the civil procedure rules. The AOS is a standard court form that is com­pleted to confirm that the defendant has received the claimant's claim form and par­ticulars of claim. The defence sets out the defendant's reasons for opposing the claim.

Once a default judgment has been entered against a defendant, it is still possible for the defendant to apply to set aside the default judgment if one of the grounds set out in CPR Part 13 applies.

You will notice throughout the exercises that the main case documents will show the parties' status as either ‘claimant' or ‘defendant' but that the documents relevant to the interim application itself will include additional status titles of ‘applicant' and ‘respondent'. This is standard practice for interim applications.

The second claimant, Rose Landice, is under 18 years of age and is therefore a minor and so special procedural rules apply. Rose is suing through her ‘litigation friend' who is her father, and CPR Part 21 covers children and protected parties and is worth read­ing in advance of the exercise. You can assume that the litigation friend requirements under CPR Part 21.5 have been followed but it is worth familiarising yourself with these requirements.

Read CPR Part 13 (setting aside a defaultjudgment) and construct arguments to make the following interim application after reading documents 1-5. The applicant in this exercise is the defendant.

Civil Case Study - Landice and Landice v Wheeler

Document 1

Memorandum A - Applicant/Defendant

From: Margrit Munsted (Supervising Solicitor) Date: 16 December (year)

We have been instructed by Mr Lupin Wheeler to set aside the judgment in default order dated 17 November.

Mr Wheeler instructs me that he was very surprised to receive a copy of the order as he had not previously received a copy of the Particulars of Claim. Mr Wheeler says that he did receive an initial letter of claim, but it was sent to his neighbour's home address. He also received the judgment in default order which was sent to the same address. He thinks that the Particulars of Claim may also have been posted to the neighbour's address by mistake but unlike the other documents, the neighbour did not pass that document on to him.

Mr Wheeler explained that he lives in a house which bears the address 11 Roam Way, but he sublets the house, and he lives in the basement which is sepa­rately addressed as 11A Roam Way. His tenants are therefore his neighbours. He believes the Particulars of Claim may have been wrongly posted to the 11 Roam Way address (the house). Usually, the occupants of 11 Roam Way pass on any mail posted to that address that bears his name. Unfortunately, the tenants left on 10 November. They left owing rent and so Mr Wheeler says it is unlikely they would have volunteered that they were holding mail addressed to him after the beginning of October as they were not on speaking terms by then. He did however find a copy of the default judgment whilst clearing out the house to let it to new tenants.

I have telephoned the court office which says that they are not able to substan­tiate when the Particulars of Claim was posted by the claimants because the claimants have not yet filed a Certificate of Service.

I have made an application to set aside the default judgment under Part 13 of the Civil Procedure Rules. I served the application notice (not supplied) together with the supporting witness statement on the claimants’ solicitors LegalWays LLP and so have complied with CPR Part 23.

The hearing is tomorrow but unfortunately, I am involved in a trial at the local county court that has over run. Could you attend the hearing on behalf of Mr Wheeler please?

I would be grateful if you would consider the relevant civil procedure rules to identify the grounds for the application as well as considering any cases that may assist us.

I have opened a new case file for Mr Wheeler and have entered the relevant details on our case management system.

I asked our trainee to do some preliminary research and she tells me that the following cases may be relevant so please read these as it may help you to put forward arguments in support of the application or pre-empt arguments that may be put in opposition by the other side:

1. Core-Export Spa v Yang Ming Marine Transportation Corporation [2020] EWHC 425 (comm)

2. Cranfield and Another v Bridgegrove Ltd [2003] EWCA Civ 656

3. Denton and Others v TH White Ltd and Others [2014] EWCA Civ 906

4. Henriksen v Pires [2011] EWCA Civ 1720

Document 2

IN THE HIGH COURT OF JUSTICE No. HC/CD/0921

QUEENS BENCH DIVISION

BETWEEN:

Clarissa Landice First Claimant

-and-

Rose Landice Second Claimant

(a child by Mario Landice, her litigation friend)

Lupin Wheeler Defendant

PARTICULARS OF CLAIM

1. On the 18 September (year) the first claimant was driving her Nissan Leaf motor vehicle registration number GB20YEA along Slodan Road, AnyTown when an Audi A3 Volvo V40 registration number GB70NAY driven by the defendant emerged from a side road known as Pocket Place and collided with the claimant’s motor vehicle.

2. At all material times the second claimant was a rear passenger in the first claimant’s vehicle.

3. The above accident was caused wholly by the negligence of the defendant.

Detailed Allegations of Negligence of the Defendant

a) Failing to give sufficient consideration to other traffic on the road

b) Emerging and driving onto the junction when it was not safe to do so

c) Driving above the official speed limit for the road

d) Failing to stop at a designated stop sign

e) Failing to notice, observe or respond in time to the signs, markings and layout of the junction

f) Failing to give priority to the claimant’s motor vehicle

g) Failing to stop, slow down, swerve or manage or control his car in a way that would have avoided the accident

On the 30 October (year) at the AnyTown Magistrates Court the defendant was convicted of the offence of driving without due care and attention.

4. As a result of the defendant’s negligence, the first and second claimants have suffered injury, loss and damage

Details of Consequential Loss

See attached Schedule of Loss (notsupplied). Further the claimant claims inter­est upon such damages pursuant to section 35A of the Senior Court Act 1981

Details Of Injury

The first claimant was born 16 June 1980 and suffered pain, suffering and loss of amenity (see attached medical record - not supplied). The second claimant was born 2 November 2011 and suffered pain, suffering and loss of amenity (see attached medical record - not supplied).

Details Of the Basis of the Claim for Interest

Interest is claimed under section 35A of the Senior Court Act 1981.

Special Damages

Interest is claimed upon each, and every item of consequential loss incurred from the date such loss occurred to be assessed at half the full special account rate prescribed under the provisions of the Court Fund Rules 1987 as amended.

General Damages

The claimant claims interest on general damages at the rate of 2% from the date of service of the claim form in this case until the date of judgment.

AND the claimants claim:

1. Damages exceeding £50,000

2. Interest pursuant to section 35A of the Senior Court Act 1981

STATEMENT OF TRUTH

The claimant believes that the facts stated in this particulars of claim are true. The claimant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed on behalf of the claimant Assiah Proctor

Dated this 13th day of October (year)

LegalWays LLP

Rising Hill

AnyTown Landshire

Solicitors for the claimants who will accept service of proceedings at the above address

Document 3

UPON the application of the first and second Claimants

AND UPON hearing Solicitors for the first and second Claimants

AND UPON reading the Court file

IT IS ORDERED THAT:

1.

2. The court to list a hearing for the assessment of damages to take place within 6 weeks.

3. the costs of the claim, to be assessed, to be paid to the first and second claimants by the defendant.

Dated

17 November (year)

DOCUMENT 4

WITNESS STATEMENT OF MARGRIT MUNSTED

I Margrit Munsted, born on 5 July 1970, senior partner of Messrs Munsted and Partners of Value Street, AnyTown, Landshire WILL SAY as follows:

1. I act for the defendant Mr Lupin Wheeler. Except where otherwise expressly stated, I make this witness statement from matters within my own knowl­edge, information and belief.

2. This witness statement is made in support of an application under CPR Part 13.3(1)(a) and (b) to set aside a default judgment entered by the court dated 17 November. It is asserted that the defendant has a real prospect of successfully defending the claim and that there are also good reasons why the court should set aside the judgment.

3. The defendant did not receive the original claim form and particulars of claim despite the claimants’ assertion that these were posted to the defendant’s address at 11 Roam Way. The defendant’s address is in fact divided into two properties.

4. The defendant was served with the claim form and particulars of claim by postal service effected by the claimants’ solicitors. However, this was sent to the wrong address, namely 11 Roam Way, AnyTown, Landshire. Whilst the defendant is the legal owner of this property, he in fact lives in the basement flat at number 11A Roam Way.

5. In addition, no certificate of service was filed at court by the claimants’ solicitors as required by CPR Part 6.17(2)(a).

6. The defendant has a real prospect of successfully defending the action because it is alleged that the first claimant made admissions of liability at the scene of the accident when she stated, “I just turned to settle my daughter into her seatbelt for one second and none of this would have happened if I had seen you”.

7. The defendant seeks an order setting aside the judgment in default and asks the court to make directions for the progression of this case.

Statement of Truth

I believe the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without honest belief in its truth.

Margrit Munsted

Solicitor for and on behalf of the Defendant/Applicant Dated 20 November (year)

Messrs Munsted and Partners

Value Street

AnyTown

Landshire

Solicitors for the defendants who will accept service of proceedings at the above address

Document 5

IN THE HIGH COURT OF JUSTICE No. HC/CD/0921

QUEENS BENCH DIVISION First and Second Claimants

A Proctor

First Witness Statement BETWEEN: 30 November (last year)

Clarissa Landice First Claimant/Respondent

-and-

Rose Landice Second Claimant/Respondent

(a child by Mario Landice her litigation friend)

Lupin Wheeler Defendant/Applicant

WITNESS STATEMENT OF ASSIAH PROCTOR

I Assiah Proctor, born on 23 December 1966, senior partner of Messrs LegalWays LLP of Rising Hill, AnyTown, Landshire WILL SAY as follows:

1. I act for the first and second claimants, Ms Clarissa Landice and Ms Rose Landice. Except where otherwise expressly stated, I make this witness statement from matters within my own knowledge, information and belief.

2. The first claimant and her daughter, the second claimant were involved in a car accident at approximately 12.00pm on 18 September (year). On 20 September the first claimant and the second claimant’s litigation friend instructed my firm to act on their behalf. We were satisfied that there was not a conflict of interest because the first claimant informed us that the defendant admitted liability at the roadside with the words “I didn’t see you, it all happened so fast, I should have been more careful”.

3. On 27 September we sent a Letter of Claim dated 24 September to the defendant’s address at 11 Roam Way, AnyTown, Landshire. We also sent a copy of the letter to the defendant’s insurance company.

4. The defendant did not respond to the letter of claim and so on 13 October we issued proceedings. The claim form and particulars of claim were posted to 11 Roam Way on 13 October together with a response pack in accord­ance with CPR Part 7.8. Under the provisions of CPR Part 6.14 deemed ser­vice occurred on the second business day after that date.

5. No Acknowledgement of Service was received by the defendant within the 14-day period specified under CPR Part 10.3 and no defence was filed within the 14-day period specified under CPR Part 15.4.

6. In the circumstances an application was made for judgment in default on 17 November under CPR Part 12.3 and the court granted judgment with damages to be assessed at a further hearing.

7. The judgment has been properly entered and we oppose the defendant’s application to set aside the default judgment.

Statement of Truth

I believe the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without honest belief in its truth.

Assiah Proctor

Solicitor for and on behalf of the Claimant/Respondent

Dated 30 November (last year)

LegalWays LLP

Rising Hill

AnyTown Landshire

Solicitors for the claimants who will accept service of proceedings at the above address

6.6.2 Exercise 2 (Summary Judgment)

The next exercise involves an application by the claimant for summary judgment. Unlike a default judgment, a summary judgment application, if made against a defendant, is made after the defence has been filed and on the basis that the defence does not have a reasonable prospect of succeeding at trial. However, a summary judgment can also be sought against the claimant on the basis that their claim does not have a reasonable prospect of succeeding at trial. In addition, for both types of application, there must not be any “other compelling reason why the case or issue should be disposed of at trial”.

In this exercise the claimant is making the summary judgment application against the defendant. The claimant is therefore the applicant.

Read CPR Part 24 and construct arguments for the following interim application after reading documents 6-8.

Remember to follow the guidance at the beginning of this chapter on how best to approach your case strategy for constructing arguments. You might also refer to Part A, in particular Chapter 2 for a reminder of communication skills.

Document 6

Memorandum B - Applicant/Claimant

From: Assiah Proctor (Supervising Solicitor)

Date: 20 January (year)

Could you take on this file for me please? I have been dealing with a claim made on behalf of Clarissa and Rose Landice arising out of a road traffic accident which occurred on 18 September. We issued proceedings on 13 October and obtained a judgment in default on 17 November. This has been set aside by the court following a successful application by the defendant at a recent hearing.

The court made an order that the defendant file a defence within 14 days. We have now received a copy of the defence and quite frankly it is not in the least bit convincing. It amounts to no more than a bare denial and makes no men­tion of the admission which our client says was made by the defendant at the roadside.

The defence has been signed by the defendant and so I can only assume that he is now acting in person. I have made an application for summary judgment under CPR Part 24 by serving an application notice and supporting witness statement as required by CPR Part 23. I prepared the witness statement in a rush so could you please check that it complies with the procedural require­ments. There is always CPR Part 3 that can be used if you run into difficulties.

The hearing has been listed for tomorrow. Could you attend the hearing on behalf of the claimants please to argue for summary judgment? Please read the witness statement that I prepared and consider any relevant procedural rules and supporting cases. You will see that I have also asked the court to consider a strike out application under CPR 3.3, just as an alternative measure.

Could you also make an application for costs? Ensure that you take a Schedule of Costs form with you with calculations of your perusal and preparation time and attendance at court. You should base this on your hourly rate of £186.

You may also find it helpful to read the following cases as they all give a helpful perspective on the nature of summary judgment applications:

1. Swain v Hillman and Others [1999] EWCA civ 3053

2. Royal Brompton Hospital v Hammond (no 5) [2001] EWCA Civ 550

3. Three Rivers District Council v Governor and Company of the Bank of England [2001] UKHL 16

4. ED & F Man Liquid Products v Patel [2003] EWCA Civ 472

5. Arsenal Football Club Plc v Elite Sports Distribution Limited [2002] EWHC 3057

6. Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63

I believe that the defendant may be appearing as a litigant-in-person at this hear­ing as there is currently some dispute with his insurance company about his motor insurance cover. This may make the hearing a little trickier so you may want to read the case of Barton v Wright Hassall LLP [2018] UKSC 12 for guidance.

Document 7

IN THE HIGH COURT OF JUSTICE No. HC/CD/0921

QUEENS BENCH DIVISION

BETWEEN:

Clarissa Landice First Claimant

-and-

Rose Landice Second Claimant

(a child by Mario Landice, her litigation friend) Lupin Wheeler Defendant

DEFENCE

1. Paragraph 1 and 2 of the particulars of claim are admitted.

2. It is admitted that the first and second claimant suffered injury, but this was because of the first claimant’s negligence.

3. In the circumstances the first and second claimants are not entitled to the sums claimed in the particulars of claim or any sum from the defendant.

4. The defendant denies each and every element of the claim.

Statement of Truth

I believe the facts stated in this witness statement are true.

Lupin Wheeler

30 December (year)

Document 8

IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION BEFORE MASTER RODEAN

BETWEEN:

No. HC/CD/0921

First and Second Claimants A Proctor

Second Witness Statement 4 January (year)

First Claimant/Applicant

Clarissa Landice

-and-

Rose Landice

(a child by Mario Landice, her litigation friend)

Second Claimant/Applicant

Lupin Wheeler Defendant/Respondent

WITNESS STATEMENT OF ASSIAH PROCTOR

I Assiah Proctor, born on 23 December 1966, senior partner of Messrs LegalWays LLP of Rising Hill, AnyTown, Landshire WILL SAY as follows:

1.

2.

3.

I act for the first and second claimants, Ms Clarissa Landice and Ms Rose Landice. Except where otherwise expressly stated, I make this witness statement from matters within my own knowledge, information, and belief.

This witness statement is made in support of an application for summary judgment under CPR Part 24.2(a)(ii) on the basis that the defendant does not have any real prospects of successfully defending the claim and CPR Part 24.2(b) that there are no other compelling reasons why this action should be disposed of at trial.

On 17 December (year) Master Rodean made an order setting aside a default judgment that had been entered against the defendant on 17 November and instead gave directions that the defendant should file a defence within 14 days. The defendant filed a defence dated 30 December within the 14-day time period but the defence amounts to no more than a bare denial and is inconsistent and unconvincing. Alternatively, the court is invited to use its powers under CPR Part 3.4(2)(a) and (c) to strike out the defence on the basis that the defence discloses no reasonable ground for bringing or defending the claim and that there has been a failure to comply with a rule, practice direction or court order.

Statement of Truth

I believe the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without honest belief in its truth.

Assiah Proctor

Solicitor for and on behalf of the Claimant/Applicant

4. Dated 4 January (year)

LegalWays LLP

Rising Hill AnyTown Landshire

Solicitors for the claimants who will accept service of proceedings at the above address

6.6.3 Exercise 3 (Interim Payment)

The final exercise in this chapter relates to an application for an interim payment on behalf of a child (the second claimant Rose Landice). The second claimant is the applicant for the purposes of this exercise.

An application for an interim payment allows a claimant to apply for an early pay­ment of the damages they expect to win at trial. However, in order to do this, they must satisfy the criteria under CPR Part 25.7. Interim payments are a type of interim remedy, and the court has general powers to make any interim remedies (including interim payments and injunctions) under CPR 3.1(2).

The application in this exercise is made on the criterion under CPR Part 25.7.1(c), that if the matter went to trial, on the evidence, Rose Landice would obtain judgment for a substantial amount of money.

Document 9

Memorandum C - Applicant/Claimant

From: Assiah Proctor (Supervising Solicitor)

Date: 23 February (year)

You will recall that we made a summary judgment application in this case last month which was unsuccessful. We are, however, starting to make some progress in this case as the defendant seems prepared to acknowledge some responsibility on his part for the accident. You will see that we have obtained a medical report relating to Rose's injuries.

I have issued an application for an interim payment under CPR Part 25.6 with the relevant supporting evidence (not supplied). As Rose is a minor any interim payment has to be approved by the court in accordance with CPR Part 21.10(1) in any event. The court will have to make directions as to how the money is to be applied. We would ask that it is simply paid out to Rose's Litigation Friend Mario Landice (who is of course Rose's father). The court can make this direction under CPR PD 21 para 8.1(2).

Could you attend the hearing before Master Hempton tomorrow and make the necessary submissions to obtain the interim payment please? You will see from the medical report that an estimate has been made regarding Rose's accommo­dation needs. This is the only valuation that we have at present.

The respondent has not served any witness statement in reply and so I am assuming he does not intend to rely on written evidence. His solicitors have however sent me their counsel's skeleton arguments. I am not sure why they need counsel on an interim application such as this, but could you attend and put our side of the case please.

You will see from the defendant's skeleton arguments that they will be relying on specific cases. Could you read those cases so that you have a clear idea of the potential arguments that the defendants might raise and then be prepared to respond to those arguments.

We have previously filed a schedule of loss (not included) in which a claim for pain suffering and loss of amenity is made of £105,000 and past losses of £26,000. In terms of future losses, we took an actuarial evaluation based on appropriate multipliers and calculated this to be £1.5 million (including future loss of earn­ings). The defendants have been served with a copy of our schedule of loss. We are therefore asking for interim payments that represent, very roughly, about 10% of the total amount that we calculate Rose would receive at trial.

It has become clear that Rose was not wearing a seatbelt at the time of the acci­dent. I am sure the defendants will try to make something of this at the hearing. You might therefore want to review the case of Froom v Butcher [1975] EWCA Civ 6 again so that you are clear on the guidelines.

Don't forget to refer to the overriding objective under CPR Part 1 if you need to!

Document 10

MEDICAL REPORT

Date of Report: 24 January (current year)

Author of Report: Mrs L Agiare

Prepared For: The Court (on instructions from LegalWays LLP)

Subject: Rose Landice

I refer to my CV which is attached to this report, and which details my qualifica­tions (not supplied).

I have been instructed by LegalWays LLP to advise in relation to the injuries sus­tained by their client Rose Landice on 18 September (lastyear) following a car accident. Rose was a rear passenger in a vehicle driven by her mother Clarissa Landice. The mother was driving on a dual carriageway in AnyTown when a car emerged from a turning on her right, failed to give way or stop at a stop sign and the vehicles collided.

In preparing this report I have had access to copies of Rose's hospital and GP records. I have also had the benefit of conducting a physical examination of Rose on 17 January and taking x-rays.

Rose suffered multiple injuries, the most severe of which was the fracture to her hip and pelvis resulting in long term difficulties in movement. She underwent surgery on 18 September immediately following the accident, which was par­tially successful, but Rose has some restrictions in her movement.

A hip fracture manifests in a crack or break in the hip bone. This often occurs in the upper part of the femur (the femoral neck) or the pelvic bone. In Rose's case the fracture was at the pelvic bone in which the pelvis was broken at both the front and the back. These types of fractures are more complex because the pelvis is made up of a series of bones that form a ring and a fracture of one will usually lead to a fracture of another. This is commonly known as an ‘unstable fracture'. Rose would have been in severe pain and shock given the degree of her injuries and her medical records show that she was unconscious for a period of approximately 30 minutes and also lost a lot of blood. She received an epidural anaesthetic to stabilise the pain. Surgery involved external fixation using metal plates and screws.

I have been instructed to give my opinion as to the prognosis and what long term effect the injuries will have upon Rose's recovery. Rose has been undergo­ing physiotherapy since her surgery and uses crutches as a walking aid. It is likely to be a further 3 months before Rose can walk without support.

Early x-rays suggest that there has been some extensive nerve damage which is one of the risks of this type of surgery. This will cause Rose some continued difficulties in mobility for the foreseeable future and she is also at greater risk of osteoporosis.

Rose currently lives in a two-bedroom house with her parents. Both bedrooms are on the first floor. Rose has difficulties managing stairs and is temporarily sleeping on a mattress on the living room floor. Rose's parents would like to build a ground floor extension with a bedroom and separate bathroom with an adapted shower and toilet for Rose. The cost of this is likely to be extensive and based on previous patients who have undertaken similar adjustments at their property it is likely to be in the region of £70,000-£100,000.

I have arranged to review Rose again in three months' time.

Statement of Truth

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document veri­fied by a statement of truth without an honest belief in its truth.

Signed

Mrs. L. Agiare F.R.C.S. CCST

Consultant Orthopaedic Surgeon

Document 11

IN THE HIGH COURT OF JUSTICE No. HC/CD/0921

QUEENS BENCH DIVISION

BEFORE MASTER HEMPTON

BETWEEN:

Clarissa Landice First Claimant

-and-

Rose Landice Second Claimant/Applicant

(a child by Mario Landice, her litigation friend)

Lupin Wheeler Defendant/Respondent

SKELETON ARGUMENTS OF THE DEFENDANT/RESPONDENT

INTRODUCTION

1. This is an application made on behalf of the applicant for an interim pay­ment of damages arising from a road traffic accident which occurred on 18 September at the junction of Slodan Road and Pocket Place, AnyTown, Landshire. The application is opposed by the respondent.

ISSUES

2. The first issue is whether the application is premature.

3. The second issue is whether the capital sum likely to be awarded at trial would be more than the amount of the interim payments that is claimed in the application.

4. The second issue is whether the award of an interim payment of £105,000 would be a reasonable award to make in all the circumstances.

5. Further or alternatively, it is submitted that the applicants have not dem­onstrated a need for the adaptation in question.

RELEVANT FACTS

6. The applicant was born on 2 November 2011 and is the second claimant in proceedings for negligence arising from a road traffic accident. The appli­cant was travelling in the first claimant’s car as a rear passenger and sus­tained injuries.

7. The respondent is the defendant in the proceedings and was driving the car and who in turn is alleged to have caused the applicant’s injuries.

8. As a result of the accident the applicant claims that she has suffered pain, injury and loss of amenity and has been unable to enjoy normal activities. Details of the applicant’s injuries are set out in a medical report dated 24 January (year).

9. The claim is defended on the basis that the negligence was wholly or partly contributed to by the failure of the applicant to wear a seatbelt.

10. The applicant seeks an interim payment to the cost of £105,000 to adapt the applicant’s current accommodation at her parent's home.

RELEVANT LAW

11. The power to grant an interim payment arises from the Civil Procedure Rules (‘CPR’) Part 25.6, 25.7(1)(c) and Practice Direction 25B.

12. The respondent’s opposition to the application relies on the principle from the decision in Cobham Hire Services Ltd v Eeles [2009] EWCA Civ 204 that where the court is asked to take into account additional factors other than those pleaded in the schedule of loss, the applicant must establish a need for the interim payment.

13. The respondent will argue that in accordance with the CPR Part 25.7(4) the court is unable to make an interim payment that is more than a reasonable proportion of the amount likely to be awarded at trial.

14. For the purposes of CPR 25.7(1)(c) the respondent will rely on the defini­tion of ‘a substantial sum of money’ given in the case of Test Claimants in Franked Investment Income Group Litigation v Revenue & Customs Commissioners (No 2) [2012] EWCA Civ 57.

15. The threshold for the civil standard of proof on an interim payments applica­tion is as stated in Heidelberg Graphic Equipment Ltd vR & C Commissioners [2009] EWHC 870 (Ch).

SUBMISSIONS

16. It is submitted on behalf of the respondent that the applicant would not succeed in her claim if the matter went to trial.

17. Consequently, it is submitted that the applicant would not obtain a sub­stantial amount of money.

CONCLUSION

The respondent asks the court to dismiss the applicant’s application for interim payments.

Changeling Chambers

Echo Street

AnyTown

Date: 21 February (year)

When you have completed all three exercises, go to Part C to find suggested approaches and solutions to all three exercises.

Self-Reflection Checklist