Civil and Criminal Litigation

UNIT 5 WORKSHOP PREP

In addition to ensuring that you have worked through all of the prepare materials in
advance of your workshop, you must also prepare answers to the following Activities.
The Activities continue the Clarkes v DMS case study that you encountered in the
previous Unit. Note that for the purposes of this Unit, as in Units 3 and 4, you will be
acting for the Defendant.

Activity 1
You are a trainee solicitor in the dispute resolution team at Hunter Ellis LLP, based in
their Leeds office. Your supervisor is Yvonne Salazar. You are assisting Yvonne in
a dispute between your firm’s client, DMS (Printers and Bookbinders) Limited, and
one of its business partners, Clarke & Sons Limited. Your client is the Defendant in
the matter.
Jonathan Friedman contacts Yvonne. He has just read an article about “Part 36
offers” (offers of settlement made in accordance with CPR 36) which really caught his
interest.
Jonathan tells Yvonne that he understood some parts of the article. He understood,
for instance, that to be valid a “Part 36” offer must be in writing; and it must specify a
period of not less than 21 days within which the defendant will be liable for the
claimant’s costs if the offer is accepted in that time.
He says that he is less clear, however, about the financial consequences where a
party makes a “Part 36” offer and the offer is neither accepted nor withdrawn, but
remains open all the way up to trial and judgment.
Jonathan asks if Yvonne could explain to him what would be the effect of “Part 36” in
three alternative, hypothetical scenarios (you may assume for each that DMS’
counterclaim is fully taken into account, and requires no separate analysis).
Scenario 1: Clarkes makes a valid “Part 36” offer of settlement. The offer is never
accepted by DMS, but nor is it withdrawn by Clarkes. At trial, Clarkes wins and
obtains judgment against DMS for more than Clarkes’ offer.
Scenario 2: DMS makes a valid “Part 36” offer of settlement. The offer is never
accepted by Clarkes, but nor is it withdrawn by DMS. At trial, Clarkes wins but
obtains judgment for less than DMS’ offer.
Scenario 3: DMS makes a valid “Part 36” offer of settlement. The offer is never
accepted by Clarkes, but nor is it withdrawn by DMS. At trial, Clarkes loses the case.
You should come to the workshop prepared to discuss your findings and comments
in relation to all three of the above Scenarios, with reference to the provisions and
effects of CPR 36. Please note, however, that you are not required to have detailed
knowledge of legal costs. It will suffice for you to understand the following:
 In general, a party that wins a case at trial can recover (most of) its legal costs
from the losing party (and the losing party will have to pay all of its own costs).
 By default, costs are normally calculated on what is called the “standard
basis”. The “indemnity basis” is an alternative that tends to increase the
amount of costs a winning party will recover. One possible use of the

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 indemnity basis is to “punish” a losing party that has behaved poorly during
the litigation process (for example by unnecessarily dragging out the dispute).
 It is normal for interest to be payable on damages back to the point at which
the cause of action accrued (usually well before litigation even began).
Interest on legal costs, however, is not normally payable until after judgment.
Consequently, to impose interest on costs that were incurred pre-judgment is
unusual, and that CPR 36 does this in some circumstances can be seen as a
type of punishment.

Activity 2 (follows on from Activity 1)

Jonathan Friedman is aware that, having given a witness statement in the
proceedings, if the matter does not settle and goes to trial he may have to appear in
the witness box. He asks Yvonne if she can tell him more about the general process
of giving evidence, including how counsel for both Clarkes and DMS can and will
behave.
Familiarise yourself with the process by which witnesses give evidence and are
questioned at trial. During the workshop you will be required to discuss and/or
explain one or more aspects of that process.

Activity 3 (follows on from Activity 2)

Jonathan Friedman has told Yvonne Salazar that he wishes to be prepared for all
eventualities at trial and judgment. He has brought to a meeting with Yvonne a list of
assets belonging to or in some way connected with DMS, and wants to know to what
extent they would be vulnerable to seizure were Clarkes to win at trial.
Familiarise yourself with the different methods available to enforce a court judgment,
and the types of asset to which they can apply (you are not required to recall specific
time periods or court forms). During the workshop you will be required to use this
knowledge to analyse Jonathan Friedman’s list of assets.

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1920_LLM_ccl_ce01_u5_workshopprep_v1.0 3 © The University of Law Limited