3 Defence Flashcards
1st paragraph
‘The Defendant(s) adopt the definitions used in the Particulars of Claim’
mitigation
‘Further or in the alternative, the Claimant failed to mitigate its losses in relation to [the purchase of the Additional Land]’
reduction of damages
‘Further or in the alternative, any loss which the Claimant may have suffered was caused wholly (or, int he alternative, contributed to ) by the Claimant’s own negligence. If (which is denied) the First Defendant acted in breach of contract or duty, any damages recovered in respect of such breach should accordingly be reduced to such extent as the court thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage ’
What should be inserted a/near end of defence?
GENERAL DENIAL PARAGRAPH
General denial paragraph - in full
‘In the circumstances the Claimant is not entitled to the relief sought or any relief.’
General denial paragraph - in full
‘In the circumstances the Claimant is not entitled to the relief sought.’
What will always be admitted?
- Admit 1st paragraph if describing (uncontroversially) business/profession
- contract ⇾ admit existence contract & sometimes performance + terms
What MIGHT be admitted?
- duties (contract & tort) may be admitted
- loss
If admitting duty… ?
D may wish to argue there was a lower standard of care than the one set out in POC ⇾ see client’s instructions
If admitting loss… ?
make it clear that D denies that breach caused the loss:
Whilst the loss referred to in paragraph X of the Particulars of Claim is admitted it is denied that this is as a result of the Defendant’s breach
how to admit certain FACTS of param but then require proof of otheres
As to [paragraph 10], although it is admitted that the Claimant [completed the purchase of the Land on DATE for £X], the Defendants require proof of…
What should you ALWAYS do if denying?
deny & say why ⇾ can’t make a ‘bare denial’
If denying breach?
D only required to respond to each & every allegation, not every paragraph & sub-paragraph ⇾ no need to give details of what D’s case is w. regard to every sub-paragraph
If denying causation…?
causation contingent on breach having occurred, any comment by D on causation likely to be prefaced w. words effectively saying ‘subject to what we say on breach’
What will often be put to proof? Wording
quantum of alleged loss & damage:
Further, as to [paragraphs 16 and 17 of the Particulars of Claim], if (which is denied). the Defendants are found liable to the Claimant, the Claimant is required to prove the quantum of any loss and damage alleged to have been suffered
