1. Pre-Action Protocol and Starting a Claim

Question 1

What are the Aims of the Pre-Action Protocols?

Answer 1

Encouraging the parties to focus on resolving the dispute without involving the courts. The pre-action protocols are designed to achieve this by enabling the parties to obtain information they reasonably need to settle the matter at the earliest possible opportunity and, if settlement is not achievable, to lay the foundations for expeditious conduct of proceedings.

It flows from this that if a defendant intends to admit liability, it should do so early, and clearly. If the defendant intends to dispute liability, it should do so clearly, and with reasons.

One of the expectations of the parties pre-action is that they consider whether negotiation or another form of ADR might allow them to avoid proceedings. Silence in response to an opponent’s suggestion of ADR can itself be deemed unreasonable conduct.

Question 2

What are the Consequences of non-compliance?

Answer 2

The court will decide whether non-compliance with a pre-action protocol (or the Practice Direction on Pre-Action Conduct) will merit adverse consequences. The most likely consequences will relate to costs and interest – increasing the amount of costs / interest to be paid / decreasing the amount to be received. The Practice Direction also states that the court may stay the proceedings until the relevant steps (which have not been complied with) are taken. When deciding whether to impose a sanction for non-compliance, the court will consider the overall effect of the non-compliance on the other party and it is unlikely that sanctions will be imposed for minor infringements. The court can ask for an explanation of non-compliance.

Question 3

Is non-compliance ever justified?

Answer 3

There are limited circumstances in which it may be acceptable not to comply with pre-action requirements. Examples include:

• Where a limitation period is about to expire, in which case it may be necessary to issue proceedings (the crucial act that must be completed before the limitation date) before there is time to comply with the pre-action requirements. In those circumstances, the parties must comply to the extent possible, and ordinarily will need to apply for a stay of proceedings after issue in order that the pre-action procedure can be followed.
• Where there is another reason for urgent proceedings or for the element of surprise. For example, a party can apply to court for a search order, which allows an ‘unannounced’ revisit to the opponent’s premises to search for documents. It is obtained when there is fear that the opponent will destroy documents rather than honour an obligation to provide them to the claimant / court. In such a case, it would defeat the purpose of the search order if a party was required to write to the other side about it before applying to court.

Question 4

Pre-action Protocol for Personal Injury Claims

Answer 4

Claimant should write Letter of Notification to potential defendant giving brief details, to enable defendant to notify its insurer.

Parties consider any rehabilitation needs (i.e. any ongoing medical and care needs) and how to address them.

Claimant should write to defendant to give full details of the claim (Letter of Claim).

Defendant to acknowledge Letter of Claim within 21 days.

Defendant to investigate and send full Letter of Response within 3 months of letter acknowledging claim. If the defendant denies liability or quantum (or both) then…

The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement. Claimant should send schedule of losses giving details of losses.

Joint selection of quantum expert (i.e. medical expert), or claimant discloses report and defendant sends written questions.

Question 5

The Practice Direction – Pre-Action Conduct and Protocols

Answer 5

Claimant should write to potential defendant to give details of the claim (Letter of Claim).

Within a reasonable period (depends on complexity of claim), defendant should send a response letter. Response letter must either…

Accepts the claims OR Reject the claim (in whole or in part) giving reasons.

The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement.

As can be seen, the practice direction on pre-action conduct is not always precise, because it needs to cater for a wide variety of disputes. For example, a reasonable response is required within a reasonable period, which could be between 14 days and 3 months. The main point is that the parties are supposed to behave reasonably, observing the spirit of the practice direction (the same can be said in relation to compliance with the specific pre-action protocols).

Question 6

Jurisdiction

Answer 6

The High Court and County Court have concurrent jurisdiction over most claims. The jurisdiction thresholds of each respective court are summarised below :

Non PI claims up to £100,000 must be in County Court. Non PI claims over £100,000 can be in either court.

Personal Injury claims of less than £50,000 must be in County Court. Personal Injury claims £50,000 or more can be in either court.

Question 7

Rules governing commencement (CPR 7)

Answer 7

The value of a claim is its financial worth (CPR 16.3(6)).

You should disregard:

interest;

costs;

any counterclaim;

any contributory negligence; and

any deduction of social security benefits.

Question 8

Approach if there is a choice

Answer 8

A claim should be started in the High Court if by reason of:

(1) the financial value of the claim and the amount in dispute, and/or

(2) the complexity of the facts, legal issues, remedies or procedures involved, and/or

(3) the importance of the outcome of the claim to the public in general,

the claimant believes that the claim ought to be dealt with by a High Court judge (7A PD 2.4).

Question 9

Transfer between courts

Answer 9

The court may transfer cases between the High Court and the County Court (CPR 30).

The criteria the court will use in deciding where the case should be tried are similar to the factors to be considered where to issue but with some additional factors (eg whether a specialist judge will be available and the facilities at court for disabled witnesses or parties) which will be considered as appropriate to the case in question.

What are the consequences of getting this wrong?

• The court may transfer the case and order the claimant to pay the costs of the transfer.
• If the matter continues in the High Court, there is a separate sanction for wrongly beginning a matter in the High Court when it should have been issued in the County Court. The penalty is that any costs awarded in the claim can be deducted by up to 25%, but this is at the court’s discretion (section 51 SCA).

Question 10

Issuing the claim at court

Answer 10

To issue a claim at court, the claimant’s solicitors must take or send the following to court:

Copies of the claim form (Form N1) to be issued and sealed:

• One copy of the completed claim form to be kept on the court file;
• One copy for every defendant; and
• One copy for the claimant to keep on its own file.

Court issue fee (varies depending on value of claim - check amount online).

There are other documents which the claimant’s solicitors may need to file at court and serve on the defendant (such as the particulars of claim) but those set out above are the minimum required to commence proceedings.

Question 11

Issuing High Court claims

Answer 11

The date of issue of the claim form is important. It stops time running for limitation purposes and starts the clock for the time in which the claim form must be served.

If the documents are sent to the High Court, the court will stamp the covering letter with the date of receipt. This is sufficient to stop time running for limitation purposes.

The documents can also be taken in in person and issued on the same day.

The court issues the claim form by entering a date of issue on the claim form, giving the case a claim number and sealing (stamping with the court seal) all copies of the claim form.

The court creates a case management file and places its own sealed copy of the claim form on that file.

Question 12

Issuing County Court claims

Answer 12

The date of issue of County Court claims has the same significance as in High Court claims.

County Court money claims are issued centrally.

Most claims in the county court for money should be issued in the County Court Money Claims Centre – a central centre that manages the claims until a hearing is required, at which point they are transferred to a particular local county court hearing centre. This is done by sending the claim form (Form N1) to the County Court Money Claims Centre and paying the appropriate issue fee.

Claims which are not money-only claims can generally be issued at any of the County Court Hearing Centres by sending in / attending with the claim form (Form N1) and fee.

The claimant will also specify its preferred County Court hearing centre on the form, and the claim may later be transferred to that County Court hearing centre, if a hearing is required (although the court might transfer it to a different hearing centre).

Question 13

Money Claim Online

Answer 13

As an alternative to the procedure set out on the previous page, some County Court money claims can be issued using ‘Money Claim Online’, an online service provided by HMCTS. The money claim online procedure is designed to provide a very quick and cost-effective resolution for simple claims. The claimant (or its solicitor) registers with the money claim online service and completes the online claim form.

This service can only be used for money claims with a value of up to £100,000 which are against no more than two defendants.

The claim form is served in the usual way, but the defendant may then respond through the online service.

If the claim is defended, it will be transferred to the appropriate local county court hearing centre.

Question 14

County Court Business Centre (CCBC)

Answer 14

In addition to the County Court Money Claims Centre (and Money Claim Online), users who are going to issue many claims (eg utility companies) can become registered users at the Northampton County Court Business Centre, which provides a particular service for such ‘bulk users’.

Question 15

Who will effect service of the claim form?

Answer 15

The claim form may be served either:

• by the court; or
• by the claimant / claimant’s solicitor.

If the court serves the claim form…

Service will usually be by first class post.

Once the court has effected service, it will send the claimant a notice of issue stating the deemed date of service.

If the court is unable to serve the claim form for any reason, the claimant will be sent a notice of non-service.

It is then up to the claimant to try to serve the claim form on the defendant.

If the claimant / claimant’s solicitor wishes to serve the claim form…

They must notify the court when issuing the claim form that they do not wish the court to serve it.

The court will give or send the claimant / claimant’s solicitor the issued claim form with sealed copies for service on the defendant(s).

The claimant effects service (explained below).

The claimant’s solicitor must then file a certificate of service at court within 21 days of service, certifying details of the date on which the claim was posted/delivered/transmitted and the method and address used (CPR 6.17).

It is not necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.

Question 16

How should service of the claim form be effected?

Answer 16

The court will use first class post to effect service, but where the claimant effects service, there are a number of other permissible methods of service as well.

Methods of service for the claim form

It is essential that service of the claim form is effective and valid. This means it must be by a method recognised as valid by the CPR. If it is not, service may be invalid and the claimant may be unable to obtain judgment or enforce any judgment obtained.

Personal service

Personal service means physically leaving the claim form with a defendant who is an individual, or an appropriate person in the case of a company or similar legal entity (CPR 6.5).

Leaving the document at a permitted address

This means depositing the claim form at a permitted address (whether or not there is someone present to receive it). ‘Permitted addresses’ are explained on the next page.

Service by first class post or DX

This means posting the document to a permitted address using first class post, or using ‘DX’ (which stands for Document Exchange) – a system used by legal professionals which provides for delivery on the next business day.

Service by fax

Service by fax is only permitted if the defendant / its solicitor has indicated it will accept service by fax.

Service by other electronic method

Service by email is only permitted if the defendant / its solicitor has indicated it will accept service by email.

Question 17

Place of service for the claim form

Answer 17

Where personal service is used, the defendant can be personally served wherever they are found within the jurisdiction. This method of service does not rely upon an address for service for the defendant. Where fax or email is used, the defendant will indicate the fax number / email address for service.

When leaving the document at a permitted address or using post / DX, thought needs to be given to which address to use.

If the defendant gives in writing a solicitor’s address in the jurisdiction for service, or their solicitor does the same, service must be to the solicitor’s address (CPR 6.7).

Otherwise, the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings (CPR 6.8).

Individual: Usual or last residence.

Individual being sued in the name of a business: Usual or last known residence of the individual; or principal or last known place of business.

Individual being sued in the business name of a partnership: Usual or last known residence of the individual; or principal or last known place of business of the partnership.

Limited liability partnership / company registered in England and Wales: Principal office of the partnership / company; or any place of business of the partnership/ company within the jurisdiction which has a real connection with the claim.

Question 18

Time limit for service of the claim form

Answer 18

Claim forms do not remain ‘valid’ indefinitely after they are issued. Where the claim form is being served in the jurisdiction, the ‘relevant step’ to serve the claim form must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Method of service: Personal service / leaving the document at a relevant place – Relevant step: Leaving the claim form with the defendant

Method of service: First class post / DX – Relevant step: Posting the claim form / leaving it with DX service

Method of service: Fax – Relevant step: Completing the transmission

Method of service: Electronic method – Relevant step: Sending the email or other electronic transmission

If the claim form is not served within this time, then the claim will fail automatically. If the claimant still wishes to pursue the claim, it will need to issue a new claim and pay the court fee again (and for limitation purposes, the date the new claim is issued will be the relevant date).

Question 19

Extension of time to service the claim form

Answer 19

If it is not possible to serve within the time limit, the claimant may consider applying to the court for an extension of time under CPR 7.6 (although this is not easy to obtain because the rules are very strict).

• The application should be made within the four month period of validity of the claim form, and the claimant will need to show good reasons for the extension. Waiting for further evidence or for a response from the defendant to pre-action correspondence is unlikely to be a good reason.
• If the application is made after the deadline for service of the claim form has already passed, then the court will grant an extension only if:

a. it is the court that failed to serve the claim form; or

b. the claimant has taken all reasonable steps to comply; and

c. either way, the application has been made promptly.

Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension in these circumstances.

Question 20

Serving the particulars of claim

Answer 20

The particulars of claim are where the claimant sets out its claim in detail. The claimant can choose to include these within the claim form itself, or can serve the particulars of claim in the form of a separate document either with the claim form, or to follow later.

• If the particulars of claim are contained in or served with the claim form, the claimant must also serve the response pack along with the claim form and particulars of claim (CPR 7.8(1)). The response pack (Form N9) contains:

a. form for admission;

b. form for defending; and

c. form for acknowledging service.

• If particulars of claim are not contained in or served with the claim form they must be served within 14 days of service of the claim form, and also within the period of validity of the claim form, ie within 4 months of issue, assuming service within the jurisdiction (CPR 7.4(2)). Where the particulars of claim are to follow, the claimant should serve only the claim form: the response pack will be served later, with the particulars of claim.

Once the particulars of claim are served, the claimant must file a copy at court within 7 days of service, unless they have already been filed (CPR 7.4(3)).

Question 21

Serving documents other than the claim form

Answer 21

The various permitted methods of serving documents other than the claim form are the familiar methods we have already looked at (CPR 6.20):

• Personal service
• Delivering to or leaving the document at a permitted address
• First class post / document exchange (DX)
• Fax or other electronic method (eg email)

In terms of the address for service (where an address is needed), when responding to the claim the defendant must give an address at which documents may be served going forwards (often the defendant’s solicitors’ address). That address is then used going forwards.

Question 22

What happens after service of the claim form and particulars?

Answer 22

The steps outlined above convey the claim form and particulars of claim to the defendant.

It is then necessary to consider when these documents are ‘deemed served’ on the defendant ie when they are treated as having been received by the defendant. This is addressed in the element ‘Deemed dates of service’.

The defendant is required to respond to particulars of claim if it wishes to contest the claim. How and when the defendant must respond is the focus of elements in the topic ‘Responding to proceedings’.

Question 23

Deemed date of service

Answer 23

The exact date when a document is served is often very important in litigation.

In an effort to achieve clarity on this point, the CPR uses the concept of deemed date of service whereby the rules prescribe the date the court considers a document to have been served, irrespective of the date it was actually received by the recipient.

• The concept of deemed date of service applies equally to the claim form and to ‘other’ documents, though there are different rules for each.
• The deemed date of service will be calculated according to the applicable rule and by reference to the method of service used.

Question 24

Deemed date of service of the claim form

Answer 24

It is important to know the deemed date of service of the claim form:

• For the claimant: because the time limit for serving the particulars of claim (if the particulars of claim are not included within or served with the claim form) runs from the deemed date of service of the claim form; and
• For the defendant: because the deadline for serving a response to the claim form (if the particulars of claim are included within it or served at the same time as it) runs from the deemed date of service of the claim form.

A claim form is deemed served on the second business day after completion of the “relevant step” (CPR 6.14).

‘Business day’ means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day (CPR 6.2).

The relevant step relates to the step necessary to effect service by each particular method and this is explained in the element relating to service of the claim form and other documents. By way of example, when serving by post, the ‘relevant step’ is posting the claim form.

Question 25

Service of the particulars of claim

Answer 25

As explained in the element 'Service of the claim form and other documents', the particulars of claim can be included within the claim form, or in the form of a separate document which can either be served with the claim form or follow later. - If particulars of claim are contained in the claim form, they are clearly part of the claim form and the rules on deemed service above apply, as described above. - If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, then there is some ambiguity in the rules as to whether the rules and time limits described above apply to the particulars of claim too, or whether the rules set out below which apply to documents other than the claim form apply (which could lead to the claim form and particulars of claim being deemed served on different dates, despite being in the same envelope). A party responding to proceedings would be prudent to act on the assumption that the particulars are served at the earliest possible date. - If particulars of claim are served separately from the claim form, ie served within 14 days after service of the claim form (CPR 7.4(1)(b)) then the rules set out below which apply to documents other than the claim form will apply to those particulars of claim

Question 26

Deemed date of service of documents other than the claim form

Answer 26

In relation to deemed date of service of all documents other than the claim form, the deemed date of service is not a uniform time after the step taken to serve was taken (as in the case of the claim form) but, instead, varies according to the method of service chosen (CPR 6.26). Instant methods (personal service, fax, email, delivering / leaving at a permitted address) If done before 4.30pm on a business day: deemed served the same day. Otherwise: deemed served the next business day Not-instant methods (Post / DX) Deemed served second day after posting / giving to DX provider, if a business day. Otherwise: deemed served the next business day

Question 27

Statements of Case

Answer 27

Statements of case are crucial documents. In broad terms, they are the documents by which a claimant sets out the factual basis of its claim and the relief sought, and the defendant gives its own position in relation to the alleged facts and the alleged entitlement to relief. We will start by looking at the rules and PD guidance governing the format and content of statements of case common to all statements of case. - Every statement of case will be set out in a similar way, with a formal case heading at the top, and a statement of truth at the end. - The rest of the contents will be set out in a uniform manner as prescribed by the rules.

Question 28

Why do statements of case matter?

Answer 28

Statements of case are important documents. They need to be concise, clear and correct and they must comply with all necessary content requirements as prescribed by the CPR. They must also be in the correct format. If a statement of case does not comply it might require formal amendment. This will often require the input of the court, giving permission, and will have a knock on impact on other statements of case, which will also require amendment by the other parties. Even if the claim can proceed without formal amendment to the statement of case, the deficiency will often cause time to be wasted by the court and parties in working around the problem. There will be costs consequences for parties who serve deficient statements of case causing any of these issues, not to mention tactical disadvantages, some of which could be very serious.

Question 29

Case heading

Answer 29

Every statement of case must be headed with the title of the proceedings. The title will be set out as in the example below and must include (7A PD 4.1): - the court and/or division in which the claim is proceedings (eg, top left hand corner of the page in capitals 'IN THE HIGH COURT OF JUSTICE, KING'S BENCH DIVISION') - The number of the proceedings (eg in the top right hand corner 'Claim number: 20XX-HC-5612') - The full name of each party and the party's status in the proceedings (eg 'Charles Corby, Claimant, and Daniel Darwin, Defendant').

Question 30

Rules applicable to all statements of case

Answer 30

Court documents are all presented in a uniform way. Every statement of case must contain (5A PD 2): - Numbered paragraphs; - Pages numbered consecutively; - All numbers and dates in figures (eg ‘The property was purchased for £23,000 on 29 March 1965’); - Reference in the margin to every document mentioned that has already been filed at court; - The name of the person who drafted the document (the statement of case will therefore contain the name of an individual barrister or the firm of solicitors); and - A statement of truth (explained on the next page).

Question 31

Statement of truth

Answer 31

Every statement of case needs a statement of truth (CPR 22.1(1)(a)). A party's statement of case can be used as evidence in the proceedings only if verified by a statement of truth. A statement of truth is a formal way of the person signing confirming that they believe that the document is true. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases (CPR 32.14). The format for a statement of truth to accompany a statement of case is given in the relevant PD. On the next slide there are a couple of examples.

Question 32

Claim form

Answer 32

Claim form - purpose The claim form is the document used to commence proceedings and to set out key elements of the claim, in particular the identity of the parties. It is the first statement of case. The claim form is prepared by the claimant. [picture of a claim form] Claim form - structure The claim form is usually on Form N1 (7A PD 3.1) – so the form dictates the structure and guides the content to be included. Note that special forms might apply in specialist proceedings (eg in the Commercial Court). We will turn to next to the contents of the claim form. Claim form contents - parties The claim form must contain the names of the parties and their addresses. The parties must be referred to in a particular way. If a party is claiming or being sued in a representative capacity, the claim form must state what that capacity is – otherwise the people allegedly represented may not be bound by any decision the court makes. Claim form contents – addresses The parties' addresses are the addresses for service, but the claimant must also indicate an address where it resides or carries on business, if different (16 PD 2.2).

Question 33

Claim form contents – claim details

Answer 33

The claimant is required to include brief details of their claim. This should include: - A concise statement of the nature of the claim. This is a very brief summary of the type of claim. This statement is not to be confused with the particulars of claim, which must either be set out later in the claim form or in a separate document. - The remedy sought by the claimant. Although this is required, the court has the power to grant any remedy to which the claimant is entitled (not just the remedy sought by the claimant in the claim form). It is not necessary to expressly include a claim for costs (CPR 16.2).

Question 34

Claim form contents – value of claim

Answer 34

Where the claimant is making a claim for money, the claim form must include a statement of the amount claimed (CPR 16.3). The statement of value can be set out in any one of three ways: - Where the amount of the claim is specified, the statement of value can simply state this amount; or - Where the amount of the claim is for an unspecified amount (such as a claim in tort for damages), then the claim form can either have: A statement saying: 'The claimant expects to recover less than £10,000', '…between £10,000 - £25,000' or '…more than £25,000' (this information is used to provisionally allocate a claim to a track – explained in the elements relating to case management); OR - A statement saying: 'I cannot say how much I expect to recover'. The court's power is not limited by the claimant's statement of value in the claim form; the court can give judgment for whatever amount (if any) it finds the claimant is entitled to (CPR 16.3(7)). In a personal injury claim, the claimant must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,000. Sometimes the claimant has a choice whether to issue the claim in the County Court or High Court. If the High Court is chosen in this situation, a special ‘jurisdictional endorsement’ must be included in the claim form (CPR 16.3(5). In relation to a claim for money, if the claim form is to be issued in the High Court it must: - state that the claimant expects to recover more than £100,000; - state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment; - if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or - state that the claim is to be in one of the specialist High Court lists and state which list. The effect of the provisions referred to above is that if a claimant is making a non-personal injury claim for over £100,000 in the High Court, it will, when stating the value of the claim in the claim form: - state the exact amount of the claim; and - then state that the claimant expects to recover more than £100,000 to comply with CPR 16.3(5). NOTE: In working out the value of the claim for the purposes of the statement of value in the claim form, no account is taken of: - interest; - costs; - counterclaims; - set-off; - contributory negligence; or - state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997.

Question 35

Claim form contents – particulars of claim

Answer 35

If the particulars of claim are in the form of a separate document this will either: - Be attached to claim form (in which case the claim form will say 'particulars of claim attached’ here); or - Be sent separately to the claim form, up to 14 days after service of the claim form (the claim form will state 'particulars of claim to follow'). If the particulars of claim are served separately from the claim form, they must contain the claimant's address for service. The claimant's address for service is normally at the end of the particulars.

Question 36

Particulars of claim

Answer 36

Particulars of claim – contents – general The particulars of claim must include 'a concise statement of the facts on which the claimant relies' (CPR 16.4(1)(a)) and must cover the essential elements of the claimant's cause (or causes) of action. The particulars of claim must therefore set out all the material facts and allegations which, if proved by evidence, would entitle the claimant to the remedy it seeks as a matter of law. In addition, the particulars of claim should set out any facts that 'tell the story' and assist the reader in understanding the case, ie background facts. In most cases, this will mean that the particulars of claim will need to articulate the material facts and allegations showing a duty owed by the defendant to the claimant, breach of that duty, and that the breach caused recoverable loss. Clearly there are different ways that such matters can be expressed, and the drafting of particulars of claim is more than solely a technical skill. Duty>Breach>Causation>Loss Particulars of claim – contents – general It is not the purpose of particulars of claim to set out law, evidence or arguments. - Evidence is provided at a later stage (primarily through exchange of documents and witness statements). - Law is argued by the advocate in their submissions.

Question 37

Particulars of claim – contents – specific

Answer 37

The CPR sets out the following requirements for the particulars of claim in specific types of claim and situations: The particulars of claim should set out any claim for aggravated damages, exemplary damages and/or provisional damages, giving the grounds for claiming them (CPR 16.4). In personal injury claims, the particulars should include the claimant's date of birth, details of his/her injuries, and attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on (16 PD 4). A claim in relation to the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises (16 PD 7.1). Where the claim is based on a written agreement, it should be attached (with any general conditions which are incorporated) (16 PD 7.3). Where the claim is based on an oral agreement, the particulars should set out the words spoken, by whom, to whom, when and where (16 PD 7.4). Where the claim is based on an agreement by conduct, the particulars should set out the conduct relied on and state by whom, when and where the acts were done (16 PD 7.5). There are detailed rules on the inclusion of information in relation to past convictions, fraud, illegality, unsoundness of mind (16 PD 8). Any human rights arguments relied upon / relief sought (16 PD 14) must be included in the particulars of claim.

Question 38

Particulars of claim – contents – interest

Answer 38

A claimant has a right to claim interest on the principal amount being claimed. This is to compensate for the delay in receiving the money due to them (assuming they win the claim). If the claimant does seek interest, a statement to that effect and the details must be set out in the particulars of claim. Legal basis of claim for interest: The legal basis for claiming interest may be either: - set out in a contract between the parties or, failing that, - there is a statutory right to interest (under section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court). There are two ways of setting out the paragraph(s) claiming interest: - Calculating exactly the amount of interest claimed; or - Claiming ('pleading') the interest generally. Particulars of claim –contents – interest Exact calculation This method is only used in practice if the claimant is making a specified claim (ie a debt or a specified/liquidated damages claim). In pleading interest on a specified claim, you would need to set out: - the applicable percentage rate, - the dates from/to which interest is being claimed, - the total amount claimed up to the issue of the claim form, and - the daily rate of interest thereafter. Pleading interest generally This method is used if the claimant is pursuing an unspecified claim, ie where the court has some decision to make on the amount of damages because the parties do not agree the amount. Certain types (or 'heads') of damage will naturally fall into this category, eg: - loss of goodwill or damage to reputation (which can usually only be estimated), - loss of future earnings or profits, and - any damages where remoteness, foreseeability and/or mitigation is an issue.

Question 39

What happens if the claim is partly specified and partly unspecified?

Answer 39

For such 'hybrid' claims, you have a choice. You may treat the two claims separately, working out the interest for the specified claim and making a general claim for the unspecified claim. Alternatively, you may say that the two claims together come to a total which is an unspecified claim and therefore treat the whole claim as an unspecified claim

Question 40

Statutory interest claims

Answer 40

Where the claimant relies on section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court, the following principles apply to the award of interest: - Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment). Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this element. - In personal injury claims where damages over £200 are awarded, some interest must be awarded unless there are special reasons for not doing so, but the amount is still in the court's discretion. - In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court's discretion.

Question 41

Particulars of claim – structure

Answer 41

Particulars of claim will follow a logical structure setting out the facts supporting the duty, breach, causation and loss, as mentioned above. There are some standard paragraphs and wording that will almost always be included when doing this: Start by introducing each party, to help the court understand the context eg "At all material times the Claimant was a professional equities investor and the Defendant was a firm of solicitors. " Set out the relevant duty (or duties), including any necessary background facts eg "By a contract dated 24 October 2019, the Claimant and the Defendant agreed that the Claimant would sell to the Defendant computers for the price of £200,000." Specify the breach (or breaches) eg "In breach of the express term of the contract referred to in paragraph 4 above, the Defendant did not pay" Plead causation (linked to the breach) eg "As a result of the breach referred to in paragraph 5 above, the Claimant has suffered loss. " Set out loss (and interest claim) eg "The Claimant claims the sum of £200,000" Particulars of claim – structure - Summary of relief Before the final formalities such as the name of the firm of solicitors or barrister drafting the particulars of claim and the statement of truth, the particulars of claim closes with a summary of the remedies sought by the claimant. This is also referred to as the 'prayer’. The prayer provides the court and the defendant with a quick means by which to ascertain what the claimant actually wants.