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Legal Practice Course
Advocacy
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ADVOCACY EXAM SCRIPTS: EXAMPLE 1
Defendant’s Submission
Good morning Master, I am [NAME] representing the Defendant [COMPANY NAME]. My friend [NAME]
represents the Claimant [COMPANY NAME].
Master, this is the Defendant’s application under CPR Part 13 Rule 3 to set aside the judgement in default
obtained by the Claimant on the 18th of August.
Master, do you have a copy of the application notice and witness statement? May I hand you a chronology?
[Both hand over at the same time – Master may I also hand you a chronology?]
Perhaps Master I can take you through the background of the case first? The Claimant is seeking payment of
£350,000 under the contract entered into between the parties on the 17 th of May. The Defendant is a
cosmetics company and the Claimant specialises in producing containers for those cosmetics.
The Claimant has withheld the payment of £350,000 on the basis the goods provided under the contract were
not fit for purpose.
May I refer you to the chronology again to see the steps taken so far in this action? The claimant obtained
judgement in default pursuant to CPR Rule 12, Part 1 (a) on the 18 th of August and the defendant’s application
was issued on the 22nd of August. I have four submissions to make master.
The first is that the defendant has a real prospect of successfully defending the claim. The reason for non-
payment under the contract is that it became clear at the launch of the defendant’s launch of the anti-wrinkle
cream on the 16th of June that the cream would not come out of the containers supplied. The cream had to be
withdrawn from the market and the defendant had to replace the containers resulting in a delay to the launch
of the cream as a result. This has resulted in a loss of profit and a great deal of negative publicity for the
defendant.
Master, my second submission is that there is good reason for the late filing of the acknowledgement of
service and good reason for the judgement to be set aside in this matter. [Question on when
acknowledgement due to be filed – answers with date due and date actually filed]. Master, on the 16th June the
managing director of the defendant Miss Love spent the next few weeks trying to find another company to
design and manufacture the new containers for the cream. A contract with the company way signed on the
15th of July. Miss Love also had to go the US to meet with a company who had expressed interest in launching
the cream there. Master, if I can draw your attention to the chronology again, as you will see Miss Love
departed for the US on the 18 th of July due to return on the 8 th of August. Master, you’ll see from the
chronology however that Miss Love was involved in a golfing accident whilst in the US and she was
unavoidably detained in hospital.
She didn’t return until the 17 th of August and my firm was instructed on the 19 th August. The acknowledgement
was filed on the same day. Master, Miss Love was directly involved in the discussions that led to the contract
between the parties and therefore the only person who could provide detailed instructions.
Moving onto my third submission, the application to set aside judgement was made promptly and without
delay. My firm filed the acknowledgement on the same day as being instructed on the 19 th of August and that
afternoon my firm was informed the judgement in default had been obtained and the application to set aside
that judgement was issued and served the next working day. Master there has been no delay in progressing
this matter since Miss Love returned to the UK.
Now moving onto my fourth and final submission Master. This submission concerns the overriding objective of
dealing with cases justly and that supports the granting of this application. The claim is worth £350,000 plus
VAT and is therefore substantial. The acknowledgement of service was filed two days late and the application
to set aside judgement in default was made promptly. The defendant communicated the reasons for the delay
in payment by telephone to the claimant on the 18 th July. The claimant has had the advantage of payment of
two instalments under the contract and the outstanding payment is the matter which is in issue.
,Master, those are my submissions.
Claimant’s Submission
Master, the Defendant’s application is resisted by the Claimant. The Defendant has made four submissions and
I will seek to address each in turn but before doing so I would like to make a more general submission
concerning the defendant’s behaviour in these proceedings to date.
The defendant has generally been a poor communicator. The claimant meanwhile has completely complied
with the pre-action protocols. [Question – which pre-action protocol. Master, as this is a simple debt claim and
no specific protocol applies, I was in fact referring to the Practice Direction to the protocols and in particular
paragraph 4.1 which states the parties should act in accordance with the overriding objective which I would
contend the claimant has done throughout this case]. Master, if I could refer you to the chronology you will
see that the amount claimed fell due on the 15 th of June. Failing any response from the defendant to the
claimant’s correspondence the claimant the claimant issued its claim on the 2 nd of August, just under 7 weeks
from the date the sum under the contract fell due. Master no further communication was received from the
defendant after the issue and service of the claim form. The claimant therefore requested judgement in
default pursuant to CPR Part 12 Rule 3.1.
Master, you will see from the chronology the defendant has pushed every deadline it has faced and has failed
to properly explain its behaviour. Master I turn now to the four substantive submissions which were put
forward on behalf of the defendant. Master the firm submission states the defendant has a real prospect of
successfully defending the claim. The claimant’s submission us that this is a simple debt claim, there are no
complexities and there is no arguable defence.
My friend indicated that a key issue in the case is the fitness for purpose of the containers, the defendant is
bound to lose that point. Master, the containers are the subject matter of the contact and were designed and
manufactured in accordance with specifications and ketches provided by the defendant to the claimant. The
sketches are attached to the contract which is annexed to the particulars of claim in accordance with the
practice direction CPR Part 16. The claimant has therefore discharged its obligations under the contract and
should recover the contract price. Master, with regards to the second submission there is a good reason for
the later filing of the acknowledgement of service. Against the claimant say that simply isn’t the case. The fact
the defendant’s managing director was abroad is no reason for the defendant to ignore the claim against it.
Master I submit the US has sufficient communications to allow the managing director of a large company to be
able to speak to colleagues and ensure a case of this type should proceeding accordance with the CPR. Master
it is common practice for companies to conduct business over large distances that this is no excuse.
Master, the third submission made by the defendant is that the accident which the defendant was involved in
is a reasonable excuse for not having proceeded with the case diligently. Master, the claimant contends that if
the managing director had time to play golf, she should have responded to the case efficiently. The defendant
has not given this case the attention it deserves.
Master, the final submission relates to the overriding objective. Your attention has been drawn to the fact that
this matter should be dealt with justly and Master you will be aware this means the matter should be dealt
with proportionately, expeditiously and on the basis the parties are on an equal footing. Master as you may be
aware the defendant is a large international cosmetics company. However, the amount outstanding is a
significant amount of money to a company of the claimant’s size and it is vital for the survival of the claimant
that the payment is made pursuant to the contract as the claimant is coming under increasing pressure from
trade creditors and its bank concerning monies owed.
Master, for all of these reasons I invite the court to refuse the defendant’s application for summary
judgement.
Defendant’s Reply
Yes Master.
, Dealing firstly with my friend’s submission relating to the defendant’s conduct,
Master there is no point to make in this regard. The defendant did reply to the claimant’s letter by telephone
and explained that the goods were not fit for purpose. Master, I have already addressed you as to the reason
why Miss Love had to go abroad and that solicitors were instructed in this matter as soon as practicable when
Miss Love returned.
Master, the fact the acknowledgement of service was filed on the day solicitors were instructed and the
application before you was made without delay I hope is evidence that the defendant is not employing any
type of avoidance or delay tactics.
Moving onto the second submission in reply Master, I have outlined the main issue of this matter being the
fitness for purpose of the goods supplied by the claimant. It is unreasonable to suggest the defendant would
have submitted defective designs to the claimant. The contract was for the claimant to design and
manufacture containers this contract was not complied with and certainly the matter deserves a full trial.
<Master, the claimant raised the point that if Miss Love had time to play golf, she must have had time to deal
with this matter. Master, as explained, Miss Love was in the US attempting to mitigate loss and playing golf
during business hours serves the purpose of networking and discussing business matters to preserve the
commercial relationship.
Finally master, whilst the claimant’s financial situation is unfortunate this does not alter the fact that if the
defendant is successful, it should not have to pay the contractual price that is being claimed.
Master, the overriding objective provides the court must deal with matters justly and would submit that it
would not be just to prohibit a defence with a real prospect of success from continuing due to a minor
procedural delay.
Master those are my replies.
Claimant’s Reply
Thank you master.
I have two short replies to make. The first Master is that it is wholly disingenuous to say this is a complex
matter. As submitted, this is a simple debt claim. The facts speak for themselves, the defendant has not
treated this matter with the importance it deserves. Master it is easy to disguise delay with excuses, but more
than three months have passed without reasonable explanation of the amount owing under the contract.
Master, the second submission in response is that it would be in accordance with the overriding objective for
the Claimant’s application to be dismissed. Master, the civil procedure rules are designed to ensure the parties
act reasonably in exchanging information to avoid the necessity of starting proceedings. Master, as stated the
defendant has not acted in accordance with this. In particular the defendant failed to act in accordance with
the CPR in particular CPR Part 10, Rule 10 relating to the period in which the acknowledgement of service
should have been filed. Master the claimant has not acted appropriately which is in stark contrast to how the
claimant has acted. The claimant has, during all proceedings, complied with the CPR. Master, on this basis I
would urge the court to dismiss the claimant’s application.
Defendant - Costs
Yes Master, thank you for granting the application and I would ask that you grant the Defendant’s costs in any
event. Master, may I draw your attention to CPR part 44 rule 2 in which it is stated the general rule on costs is
that the unsuccessful party will be ordered to pay the costs of the successful party. Master, if I can draw your
attention also to CPR part 44, rule 3.4 in deciding what order as to costs to make having regard to all the
circumstances in this matter and the conduct of the parties. Master you have stated in your judgement that
the defendant acted promptly in making the application, although we acknowledge the acknowledgement of
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