Civil Litigation

Drafting – Particulars of Claim, Defences, Witness Statements – Civil Litigation – SQE1 & SQE2 Exam

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

Download [197.35 KB]

Drafting – Particulars of Claim, Defence, Witness Statement
Particulars of Claim
1. Format – CPR 16 and 16 PD – do this first and pick up these easy marks
a. Check the name of the court in which the claim is proceeding:
i. IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ii. IN THE COUNTY COURT
MONEY CLAIMS CENTRE
b. Check claim number
c. ‘Between’… ‘- and -’…
d. Look out for including LLP, Ltd in names + spelling of names
e. Non-LLP Partnership (a firm) = use plural of claimant / defendant
f. Check tram lines read: Particulars of Claim
g. Para 1 – At all material times the C was… and D was…
2. Typos / factual errors – matters of fact, e.g. incorrect names – they are NOT matters
of style (i.e. do not rewrite parts that are unclear etc., only correct errors)
3. Content – DBCL ~ at least one of these will be completely missing + we will have to
draft this from scratch
a. Para 2 – Background – details of contract
§ Who? When? Where? What for? What was consideration?
b. Para 3 – DUTY = Contract, or contract and tort
i. Contract –
§ Express Term
a. Written – refer to clause and write: It was an express
term of X at clause Y that… (A copy of the contract is
attached to these particulars of claim.)
b. Oral
§ Implied Term (do not cite statute)
a. Goods – It was an implied term of X that the goods
would…
i. S 13 SGA – correspond with the description
ii. S 14(2) – be of satisfactory quality
iii. S 14(3) – be fit for particular purpose made known to
the seller
b. Services
i. Exercise reasonable care and skill (s 13 SGSA)
ii. If professional (i.e. lawyer, accountant, actuary,
investment firm etc.): add SoC = to be expected of a
reasonably competent X, specialising in Y.
It was an implied term of the [name contract] that the
Defendant would exercise reasonable care and skill when
© Liam Porritt 2020 2
advising the Claimant to be expected from a reasonably
competent [solicitor], specialising in commercial property.
ii. Tort (where professional negligence claim = lawyer, accountant etc.
ONLY, not for example a window cleaner) – Further or alternatively,
the Defendant owed the Claimant a like duty in tort.
c. What HAPPENED NEXT? (THIS IS KEY! – NB there may be a paragraph, but this
may lack info => from the memo, what did C do before the breach occurred /
due to the breach? (This likely worsened D’s losses.))
§ E.g. On the basis of advice, we purchased the land. We then were
approached by Sunny threatening litigation. We returned to Weller
and we were given the same advice. However, we decided to delay
building b/c etc. Give all relevant details to breach + losses.
d. Para 5 ish – BREACH (mirror of duties) – In breach of the express term
referred to in Para X above and the implied term referred to in Para X above
and the common law duty referred to in Para X, the defendant…. [did / did
not do X – failed to exercise reasonable care and skill by failing to keep up-todate with the law, failing to qualify response etc.]
e. What HAPPENED NEXT + CAUSATION? (THIS IS KEY!) – where did losses come
from? => FURTHER action taken not yet mentioned.
§ CAUSATION – Here go through and explain all losses + where they
came from (no need to go into detail on the values here – include
these below in particulars of loss and damage)
§ E.g. As a result of the breaches of the express terms, implied terms
[and common law duty] referred to in paragraphs X, Y [and Z], [e.g. C
was not advised that it could be in breach of restrictive covenant;
would not have bought land if had been so advised. C was obliged to
buy the other car park, take out a loan. We would not have purchased
the land had we not been given the advice, and would not have been
forced to purchase the car park.]
© Liam Porritt 2020 3
f. Para 7 ish – LOSS: As a result of the matters set out above, the claimant has
suffered loss and damage.
Particulars of loss and damage (DO NOT NUMBER THIS AS PARAGRAPH)
NB do not include losses that do not flow from the breach, e.g. loss of profit
that would not be gained, as the land would not have been bought and the
supermarket never opened => Put C in position they would have been in had
there been performance.
A – 50
C – 30
D – 20
Total: £80
g. Para 8 – The claimant also seeks damages for loss of reputation / anything
similar.
h. Interest (form of which is dictated by CPR 16.4)
i. Specified (claim for unpaid invoice):
X. The Claimant also claims interest pursuant to [clause [A] of the contract / section 35A
Senior Courts Act 1981 / section 69 County Courts Act 1984] from the due date of the
invoice to today’s date at the rate of 8% (if under statute, or the rate in the contract)
per annum in the total sum of £X.
Particulars of Interest
8% of £[amount claimed] for the period A to B inclusive (C days at the daily rate of
£Y) = £X
Y. Further, the Claimant claims interest as above from today’s date until judgment or
earlier payment at a daily rate of £Y (=amount claimed / 365 x annual rate of
interest).
ii. Unspecified – most likely to come up in re-drafting question
X. The Claimant claims interest on the damages referred to in paragraph [] above
pursuant to [section 35A Senior Courts Act 1981 / section 69 County Courts Act 1984
/ contract] at such rate and for such period as the court thinks fit.
© Liam Porritt 2020 4
i. Prayer – AND THE CLAIMANT CLAIMS:
i. Specified:
AND THE CLAIMANT CLAIMS:
(i) The said sum of £[];
(ii) interest under paragraph X above to today’s date in the sum of £A; and
(iii) further interest under paragraph Y above at a daily rate of £B until judgment or
earlier payment.
ii. Unspecified:
AND THE CLAIMANT CLAIMS:
(i) damages under paragraph X above; and
(ii) interest under paragraph Y above.
j. Signature – Name of firm right aligned (PRICE PRIOR)
k. Statement of Truth
i. Individual IS THE CLAIMANT – I believe that the facts stated in this
Particulars of Claim are true.
ii. Representative (e.g. director of company) or solicitor – The Claimant
believes that the facts stated in this Particulars of Claim are true. I
am duly authorised by the Claimant to sign this Statement.
iii. SIGNED
l. Address of Claimant for service: Served this Xth day of Y 2020 by [solicitors’
name and address]. Ref: [our ref].
© Liam Porritt 2020 5
Drafting – Defence
Process
1. Read D’s instructions
2. Then PoC, reading it in first and second person, and work out whether to admit,
deny or require proof – BEFORE LOOKING AT Defence draft
a. If trivial or client does not make something contentious, admit; however, if
uncertain / not trivial and client does not know, require proof
b. + Consider why / different version of events for denials
3. Amend Draft Defence
4. Go back to D’s instructions in case you need to add anything further to the Defence
5. Mitigation
a. Reduction in damages – these will both be in D’s instructions, if absent from
D’s instructions, ignore
Formalities
1. Heading –
a. Check the name of the court in which the claim is proceeding:
i. IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ii. IN THE COUNTY COURT
MONEY CLAIMS CENTRE
b. Check claim number
c. ‘Between’… ‘- and -’…
d. Look out for including LLP, Ltd in names + spelling of names
e. Non-LLP Partnership (a firm) = use plural of claimant / defendant
f. Check tram lines read: DEFENCE
g. Para 1: The Defendant adopts the definitions used in the Particulars of Claim.
© Liam Porritt 2020 6
Content
• D must react to every point / allegation made in C’s PoC + state full particulars of D’s
own case:
o Admit a point – Paragraphs X-Y / The Xth sentence of paragraph Y of the
Particulars of Claim is admitted.
§ Any omissions to address a point will be deemed to be admissions
(CPR 16.5(3))…
§ Unless D has set out its own case, in which case will be deemed to
require proof (CPR 16.5(5))
o Deny + WHY – giving reasons – Paragraph X of the Particulars of Claim is
denied.
§ Must state its version of events (CPR 16.5(2))
§ If disputing statement of value, must give reason + what it estimates
the value to be (CPR 16.5(6))
§ ALWAYS DENY THE WHOLE BREACH
o Require proof – allegation in respect of something about which D did not +
could not know – the Defendant is unable to admit of deny paragraph X of
the Particulars of Claim and the Claimant is therefore required to prove all
the matters stated / put to proof.
§ This is often required for the amount of alleged loss
• Mitigation + (separately) reduction in damages (only where present in D’s
instructions) – position this in causation / what happened next para before ‘as a
result of the breaches, the Claimant has suffered loss and damage’ para:
1. If no instruction that loss NOT attributable to D (as attributable to another
reason), require proof of costs being attributable to D’s alleged breach => If
(which is denied) D actied in breach of contract [or breach of duty at common
law], D requires proof that X was attributable to the alleged breach.
2. If instruction that loss NOT attributable to D => Further or in the alternative,
the Defendant denies that [costs] were attributable to the Defendant’s
alleged breach of duty.
3. If instruction that C failed to mitigate: Further or in the alternative, the
Claimant failed to mitigate its losses in relation to…
4. Where figures of expenditure in causation => Further or in the alternative, C
is required to prove the amount of any such expenditure.
5. Para with Particulars of Loss and damage:
§ As to paragraph X, if (which is denied) the Defendant is found liable to
the Claimant, the Claimant is required to prove the quantum of any
loss and damage alleged to have been suffered.
§ [Further or in the alternative,… [deny loss where alternative figure
from D].]
6. It is denied that the Claimant is entitled to interest as claimed in paragraph Y.
© Liam Porritt 2020 7
Closing formalities
1. The General Denial
• Final paragraph before the signature and statement of truth
• In the circumstances, the Claimant is not entitled to the relief sought [or any relief –
inserted where complete denial of all claims to damages].
2. SIGNATURE (PRICE PRIOR) – right aligned
3. Statement of truth (16 PD 11.2): [I believe][The defendant believes] that the facts
stated in the defence are true. [I am duly authorised by the Defendant to sign this
statement.]
4. Address
© Liam Porritt 2020 8
Drafting – Witness statement (Summary Judgment OR Interim Prohibitory Injunction)
Follow 32 PD!!! NB IGNORE HEARSAY FOR DRAFTING!!
1. Format and language errors (32 PD 17-20)
• Top right-hand corner (above claim number) – top corner endorsement
o [Claimant/Defendant] (NB where application before claim issued, use
Applicant and Respondent)
o Witness name [F Vollbehr]
o Number of statement for this witness [FIRST]
o Any exhibits [FV1-5]
o Date of examination [22.09.19]
• Body
o Prior to first numbered paragraph: I, [full name], [occupation], of [address
– business address + position held + name of employer if in professional
capacity], will say as follows:
o Para 1: I am the [title] of the Defendant / Claimant (=statement whether
party to / works for party to proceedings) and I am authorised to make
this statement on its behalf.
o Remember: 18.2! – I make this witness statement from matters within
my knowledge or belief save where the contrary appears. Where I refer
to matters of which I have been told by others, those matters are true to
the best of my knowledge and source of the information appears.
o [Purpose of witness statement; for interim hearing application / reply
ONLY: I make this statement in support of the Claimant’s application for…
/ I make this statement in support of the Defendant’s reply to the
Claimant’s application for…]
§ Where Interim Prohibitory Injunction appl. => describe: to refrain
D / R from disclosing…
• 18.4: Exhibits: where exhibits are referred to: I refer to X, marked
“[initials]1/2/3/etc.”.
• 19.2 – witness statement should appear in chronological order
o Look out for need to set out quantum of loss at the end (NB there should
be no mention of costs)
• [Final para, specific to interim hearings: ‘In the circumstances, I submit to this
Honourable Court for the reasons set out above that the Defendant is (not) liable
for the sum claimed and that the Claimant’s application should be dismissed /
granted (and judgment be given in favour of the Claimant for the full sum due
together with interest on that sum).’]
• 20.2 – Statement of truth: I believe that the facts stated in this witness
statement are true.
• Signed: + Date:
© Liam Porritt 2020 9
2. Content
• Must include:
o Everything W is likely to say
o W’s own words
o Key facts W is being called to prove
• DELETIONS:
o Irrelevant
§ Use this sparingly (may not come up), only where something pops out
as irrelevant
o Privilege
§ This is likely to come up, so look for this
o Opinion
§ Unless perceived fact
• ADDITION – :
o What is my argument?
§ E.g. not paying for purchase of supply and installation of computer system because
faulty and delay in service – does not give grounds for summary judgment as have a
real prospect of success
o What is legal basis?
§ Breach of implied terms to carry out service with r care and skill; and delay
o What is fact (Witness Statement)?
§ Defendants made claimants aware of kind of computer system wanted and when it
should be up and running
o What W must prove? – WHAT IS MISSING FROM WS in relation to what we
are trying to prove?
§ Citing what went on in the meeting
§ What went wrong with the system + why there was delay

Share:
%d bloggers like this: