Case study questions: Andrew James Pike
You have a witness statement of Andrew Pike dated the 17th November 20?? and the Application Notice dated 20th November 20??. You have also received a draft order and case summary. Assume it is now 20th November 20?? and the partner supervising the case has instructed you to attend to service of, and preparation for, this application. Consider the following:
- the purpose of this Application and witness statement,
- the formalities relating to the making of the application, such as when and how you will serve the application,
- whether the statement is either necessary or adequate in terms of its compliance with any formalities and its substantive contents,
- determine whether the application complies with the requirements of the CPR and PD; and
- What other preparations would you make for the hearing and what would you expect to be the outcome of the hearing?
Assume you are acting for the Defendant in this matter. For the purposes of this stage, you are a legal representative with Rasputin & Co, and you have just received the Application and Witness statement. Your instructions from the insurer of the Defendant are to resist the application with a view to ensuring that the Claimant’s application is refused or that any payment ordered is as small as possible. John Deep has told you that, at the time of the accident, he may have had “a pint or two at lunchtime” and that possibly he was in a hurry to get to an appointment and so drove “a little over the speed limit”. However, he is adamant that he was not over the centre lines and points out that he passed a breathalyzer test. The accident was, in his view, the fault of the Claimant, who was over the centre lines.
Draft a short witness statement to resist the application.
What would happen at the hearing e.g. who would be present, in what order would things happen, and what matters may be discussed, apart from simply whether or not an Order for a payment would be made? If you were present, what would you need to do at the end of the hearing and following the hearing?
What document will have been lodged at court (and served on your opponent) at least 24 hours before the hearing? What is the purpose of this document?
Case study questions: Bollingtons Limited v Mrs Elizabeth Lynch t/a The Honest Lawyer
For the purposes of this exercise you are now acting for the defendant in this matter.
The Claim Form endorsed with the Particulars of Claim has been correctly served in accordance with the CPR. The date upon which the defendant should have filed her Acknowledgement of Service and Defence has now passed. Default Judgment has been entered by the claimant.
Acting for the defendant, you have today been telephoned by Mrs Lynch, a new client to the practice. You made a detailed note of your conversation which appears as the attendance note included with the case study questions in Chapter 10. Read this attendance note once more.
You now have instructions to pursue the matter privately for Mrs. Lynch. You have informed her that the Judgment was entered correctly but have advised that it will be necessary to apply to have Judgment set aside if she wishes to defend the claim. What documentation will you need to prepare? Prepare the documents you believe are appropriate for this type of application. If you believe a Defence is necessary, then for the purposes of this exercise you do not need to draft a Defence but you may wish to refer to one if you think in making the application you would have prepared one.
Consider the prospects of success of the defendant’s application and the likely costs orders.