CIVIL PROCEDURE AND PRACTICE II – PART A

QUESTIONS FOR REVIEW SESSION

1. ANSWER BOTH (a) and (b):

(a) You are a student at the Norman Manley Law School. During your internship,
you are engaged as a judicial clerk at the Supreme/High Court of Jurisdiction
and you are assigned to Justice Maya Wisdom.

Justice Wisdom has been assigned a civil claim involving a four-vehicle

collision that occurred in Jurisdiction. She will be presiding over all interim
hearings as well as the trial.

The court file reveals the following information.

On August 15, 2019 at about 5:00 a.m., the Claimant, Dulcie Mendez, a nurse,
was a passenger in a motor bus owned by Bus-In-An’-Out Limited (Bus-In),
when the bus was involved in an accident. Bus-In is a limited liability company
incorporated in Jurisdiction.

At the time of the accident, the bus was being driven by Martin Skillful, who was
at all material times employed to Bus-In as a driver. The bus was a 24-seater.
The accident occurred outside of peak traffic hours, and at the time, the bus
was carrying five passengers in addition to the driver. The bus was travelling
along one of the main roads in Jurisdiction when it was involved in a collision
with a motor van owned by Pierce Insurance Company Limited (Pierce) and
driven by Pierce’s Information Technology Manager, Angus Robbins, a Mazda
motor car owned and driven by businesswoman, Meredith Bailey, and a Honda
rental car owned by Webber Rent-a-Car Limited (Webber) and driven by hirer,
Tobias Owens.

The collision between the motor van, the Mazda motor car and the bus
occurred first, with the bus thereafter colliding into the rear of the rental car.

Webber is a limited liability company incorporated in Jurisdiction and carries on

the business of car rental. Mr. Owens had rented the vehicle whilst his own car
was undergoing repairs in the garage.

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Mrs. Mendez, Mr. Robbins, Ms. Bailey, Mr. Skillful and Mr. Owens all reside in
Jurisdiction.

Mrs. Mendez sustained serious injuries and suffered loss and damage.
Attorneys-at-law, Eagle, Gregg & Whin (EGW), have filed a claim against the
owners and drivers of all four vehicles on behalf of Mrs. Mendez.

Justice Wisdom dealt with the following application before your internship
began:

Attorneys-at-Law, Miles, Sharpe, & Gotit (MSG), who were retained by

Webber’s insurance company, Saphire Insurance Limited, act for Mr.
Owens and for Webber. MSG made an application to strike out the claim
against Webber on the basis that there were no reasonable grounds for
bringing the claim against it. MSG argued that the hirer, Mr. Owens, was at
all material times not the servant and/or agent of Webber, it being a rent-a-
car company, and that at all material times, Mr. Owens was using the
vehicle for his own purposes.

The application was strongly opposed on behalf of Mrs. Mendez. However,

after hearing detailed arguments, Justice Wisdom granted the strike out
order, but reserved on the question of costs.

The application was not made at a case management conference (CMC)

because the matter had not yet reached the stage for the Registry to fix a
CMC, as some of the other Defendants had not yet been served.

Shortly after the judge made the order referred striking out the claim against
Webber, EGW, on behalf of Mrs. Mendez, filed a Notice of Discontinuance
against the driver of Webber’s Honda car, Mr. Owens.

The judge asks you to prepare a Memorandum:

(i) indicating the orders for costs that she should consider making in the
respect of the application to strike out and
(ii) advising whether there are any costs consequences that arise as a
result of the filing of the Notice of Discontinuance, and if so, what
they are, and for whom.

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 (b) An application is made to set aside a regularly obtained judgment in default of
defence. Since the filing of the default judgment, an assessment of damages
commenced and was part-heard. The application to set aside the default
judgment has been heard and granted. Indicate the terms of the order for costs
the Court would be expected to make.

Explain the terms of the order and why that order would be appropriate.

2. A claim filed by the Attorney General in your jurisdiction turns primarily on the question
of whether a document was written and signed by your client, the defendant. The
defendant has denied signing it. Most handwriting experts in your jurisdiction are
contracted to the Government, through its Ministry of National Security, either as
consultants or as employees. This is so much so that you have been able to locate
only one expert who you have engaged to analyse the handwriting and signature on
behalf of the defendant.

The case management conference was held in December 2006, and a month
thereafter witness statements were exchanged. Recently, the Attorney General’s
Department has applied for permission to rely on the expert evidence of John Hanson,
a forensic expert and employee of the Ministry of National Security.

Advise the defendant on when and how the reliance by the Attorney General on Mr
Hanson’s report may be challenged, and what you would expect to be the outcome of
that challenge.

3. You are an associate attorney-at-law in the firm of Saddles, Rein & Horsays. This
morning, John Stroke, a senior partner in your firm and head of the litigation
department, invited you to attend a meeting held with a potential client, Siren
Highpitch.

Siren is a police officer in the Jurisdiction Constabulary Force (JCF), the police
constabulary force in your jurisdiction. She instructs you that she was recently advised
that she would not be re-enlisted in the JCF. The Office of the Commissioner of the
JCF did not provide her with reasons for that decision.

Siren further instructs you that every police officer, at her level, is engaged on contract
for a term not exceeding five (5) years. The officer is then required to apply to be
enlisted for a further period, not exceeding five years, at least three months prior to
the expiration date of your contract.

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 Siren’s most recent contract ended on February 27, 2023. She had applied to the
Commissioner of the JCF for the contract to be renewed in August 2022, to ensure
that she was within the requisite time period. Siren had been employed as a police
officer for 15 years and the last was therefore her third application for re-enlistment.

She instructs that, as far as she knows, there was no reason her application should
have been rejected, as her record of performance is exemplary. She had recently
received a reference letter of high commendation from the senior officer she reports
to. She had not been invited to attend any hearing on the matter and had simply had
delivered to her yesterday, a letter indicating that her contract would not be renewed.

You conduct research on the matter and discover that the Jurisdiction Constabulary
Force Act provides that where a police officer is not being re-enlisted the
Commissioner of Police must provide reasons in writing for the decision.

You further note from case law that where a police officer has been re-enlisted on
more than one occasion, before such an application is denied, the officer must first,
before such denial, be allowed a fair hearing on any issues or concerns that may exist.
The officer should also be afforded the opportunity of having counsel present at such
a hearing.

Advise Siren Highpitch on the procedure to be undertaken to pursue a matter such as

this, the relief that would be sought and the likelihood of success.

5. ANSWER BOTH (a) and (b):

(a) As attorneys-at-law for the defendant company in a claim in which an order for
standard disclosure has been made, you have made copies of all the
documents on your client’s files. You now possess originals or copies of the
following documents (from your own files or those copied from the defendant
company’s files):

i. a letter bearing a date in January 2021 from the

claimant’s/plaintiff’s attorney-at-law to you consenting to the
filing of the defence out of time;

ii. an internal memorandum bearing a date in May 2021 from the

defendant company’s vice president of finance to the
defendant company’s president saying he thinks the claim

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 should be settled because the defendant company is clearly
liable;

iii. an internal memorandum bearing a date in June 2021 from

the defendant company’s in-house attorney-at-law the
contents of which are similar to those of the memorandum at
(ii) above; and

iv. a letter bearing a date in July 2021 from you to the

claimant’s/plaintiff’s attorneys-at-law asking whether their
client would accept $2,000,000 in full and final settlement of
the claim.

Prepare a List of Documents, in which you need not list any documents not set
out above, and briefly explain your treatment of each document.

(b) A document which is the subject of legal professional privilege has been
included in a list of documents and a copy sent to the other party’s attorneys-
at-law in response to their request for inspection.

Discuss what steps may be taken, and by whom, concerning the use of the
documents in the proceedings and what is the likely outcome of those steps.

6. You act for and on behalf of Oiljam Limited (Oiljam), an oil refinery in your jurisdiction.
Oiljam is a defendant in claim brought by Eunice Bertram for damages for nuisance.

Bertram is a farmer and owns 50 hectares of land. Her land is located down the hill
from Oiljam’s Harring Estate oil refinery factory. On or about October 30, 2022, there
was an explosion at the Harring Estate factory and thousands of gallons of crude oil
escaped the factory and flowed down the hill to Betram’s farm, wreaking havoc.

Betram suffered loss of livestock and crops and has sued your client for a sum the
equivalent of US$800,000 in your currency. Earlier this year, in response to
instructions received, you advised your client that it should make a Part 35 offer to
settle the claim as its defence is weak.

Your investigators assessment as to losses experienced by Bertram suggests that the

sum should award a sum the equivalent of US$500,000 in your currency. Your
calculations indicate that the sum likely to be awarded (i) for costs is that the equivalent

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 of US$50,000 in your currency and (ii) as interest is that the equivalent of US$23,000
in your currency.

Your client today instructs you to draft the offer to settle the claim.

Draft the offer to settle.

7. Your client, the claimant, successfully obtained a judgment against the defendant for
a sum, the equivalent of US$500,000 in the currency of your jurisdiction. The
defendant has filed a Notice of Appeal of the judgment. No other document has been
filed by the defendant.

Your client advises you that the defendant lives in a large house, owned by her mother,
valued at a sum, the equivalent of US$600,000 in the currency of your jurisdiction.
The house is subject to a mortgage with a sum, the equivalent of US$100,000 in the
currency of your jurisdiction, still due and owing.

Your client is also certain that the defendant is the sole holder of a bank account at
United Bank Limited in the sum the equivalent of US$100,000 in the currency of your
jurisdiction. The defendant also owns a lien-free Range Rover motor vehicle valued
at a sum the equivalent of US$100,000 in the currency of your jurisdiction.

Advise your client, by way of letter, whether he may proceed to enforce the judgment
and, if so, how.

8. You are the attorney-at-law acting for and on behalf of, Jai Normous, the first
defendant in a claim for damages resulting from a breach of contract.

You recently attended a case management conference at which the court granted a
summary judgment application in favour of the claimant, against the defendants, jointly
and/or severally, for a sum the equivalent of US$200,000 in your currency, interest at
a commercial rate of 10% per annum and costs to be assessed.

You are today served with the perfected order. It wrongly states that judgment was
granted against each defendant for a sum the equivalent of US$200,000 in your
currency interest at a commercial rate of 10% per annum and costs to be assessed.

Required:

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(i) Detail the steps you need to take on behalf of your client in the
circumstances, giving reasons.

(ii) Prepare a draft of the submissions you would present to the court.