BPTC Civil Procedure Paper 2

You act for the claimant, Westbury Homes Ltd, in a claim against Blackstone Architects Ltd for professional negligence in the design of a residential development. The claim is valued at £1.8 million. The case is allocated to the multi-track and a costs management order has been made under CPR r.3.15. Both parties have filed and exchanged costs budgets. The claimant's budget totals £385,000 and the defendant's budget totals £290,000. At the costs management conference, the defendant argues that the claimant's budget is disproportionate, particularly the £120,000 allocated to expert evidence (the claimant proposes two experts: a structural engineer and a quantity surveyor) and £85,000 for disclosure (the claimant anticipates extensive electronic disclosure). The defendant submits that a single joint expert could address both structural and quantum issues, and that the claimant should bear its own excessive disclosure costs. Advise on: (a) the principles the court applies when approving or varying costs budgets; (b) how to justify the claimant's proposed expenditure on experts and disclosure; (c) the consequences of failing to obtain approval for budgeted costs; and (d) the procedure for varying an approved budget if circumstances change during the litigation.

You act for the defendant, Barrington Holdings Ltd, in a commercial lease dispute with the claimant tenant, Nova Retail Ltd. Nova claims £520,000 in damages for alleged breach of the landlord's repairing covenant and loss of profits due to water ingress that damaged stock. The trial is listed to commence in 4 weeks. You have just received the claimant's expert report from a building surveyor, Mr Fitzgerald, which was served in accordance with the court's directions. On review, the report contains three significant problems: (1) Mr Fitzgerald expresses opinions on the financial losses suffered by Nova, including lost profits calculations, which is outside his expertise as a building surveyor; (2) the report refers to and relies upon a without prejudice meeting between the parties' solicitors that took place on 12 September 2024; and (3) Mr Fitzgerald discloses in his report that he previously carried out a building survey of the same property on behalf of Barrington Holdings in 2021, which he describes as a routine pre-acquisition survey. Advise on each of these three issues, the procedural steps available, and the tactical considerations.

You act for the claimant, Mr George Farrell, in a clinical negligence claim against St Cuthbert's NHS Foundation Trust. Mr Farrell, aged 45, alleges that a delayed diagnosis of bowel cancer by 14 months resulted in the cancer progressing from Stage 2 to Stage 3, requiring more extensive surgery and chemotherapy. The claim is valued at approximately £750,000, including pain and suffering, loss of earnings, and future care costs. Breach of duty and causation are both contested. The defendant has made a Part 36 offer of £200,000, stated to be inclusive of interest, served on 1 February 2025 and open for acceptance for 21 days. The trial is listed for 16 June 2025. Your medical expert, Professor Davies, has advised that the claim on causation is strong but not certain — she estimates a 70% chance of establishing that the delay caused the cancer to progress. Your client asks you to advise on: (a) whether to accept the Part 36 offer; (b) the costs consequences if the offer is not accepted and the claimant fails to beat it at trial; (c) whether a counter-offer should be made; and (d) the Qualified One-Way Costs Shifting (QOCS) regime and its implications for this case.

You act for the respondent to an appeal, Kenwood Property Management Ltd, in the County Court. The appellant, Ms Sylvia Chen, is appealing a district judge's order made at a disposal hearing in a landlord and tenant dispute. The district judge struck out Ms Chen's counterclaim for disrepair under CPR r.3.4(2)(b), finding that she had persistently failed to comply with court orders: she missed two deadlines for filing witness statements, failed to attend a case management conference without explanation, and did not file a costs budget despite two reminders. The district judge gave a short ex tempore judgment stating that Ms Chen's conduct was "utterly deplorable" and that she had shown "complete contempt for the court process." Ms Chen, now represented for the first time, appeals on the grounds that: (i) the strike out was disproportionate because lesser sanctions were available; (ii) the judge failed to consider her personal circumstances (she was dealing with a family bereavement); and (iii) the judge's language suggested prejudgment and apparent bias. Advise on: (a) the test on appeal; (b) the merits of each ground of appeal; (c) the respondent's submissions in response; and (d) the powers available to the appeal court.