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Litigation > 3. Statements of case/ Particulars of Claim > Flashcards

3. Statements of case/ Particulars of Claim Flashcards

1
Q

What if an issue is not stated in the statement of case

A

court usually does not allow a party to pursue such issues that are not included Royal Brompton v Hammond/ grant a relief that is not stated Whalley v PF

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2
Q

What are statements of case

A

Formal docs in which parties concisely and precisely set out their respective cases

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3
Q

What is the aim of statement of case

A

Identify issues to be determined

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4
Q

2.3 defines a statement of case as

A

a claim form, particulars of claim where these are not included in a claim form, defence, part 20 claim

b) includes any further information given in relation to them voluntarily or by court order under r18.1

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5
Q

What is the defendants statement of case called

A

a defence

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6
Q

WHere are the rules for statements of case contained in

A

Part 16 CPR

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7
Q

Key tenet of a statement of case

A

must be concise, pleading only the material facts, for the purposes of formulating a cause of action/defence (not background facts or evidence) Tchenguiz v Grant Thornton

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8
Q

Are the contents of a statement of case evidence at trial

A

No- Arena property services v Europa. Statement of case is not meant to contain evidence

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9
Q

PD 16, para 1.3

A

Statement of case to be concise- where it exceeds 25 pages, appropriate short summary to be filed

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10
Q

PD 16, para 12.2

A

A party may
1) Refer to any point of law
2) Give the name of any witness they propose to call

  • no need to state relevant law generally unless it would cause the court to speculate upon relevance in law of purely factual narrative
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11
Q

What is the extent to which witnesses ought to be named

A

excessive factual details unnecessary, party can state name of any witness he proposes to call

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12
Q

can a party attach any documents to the statement of case?

A

documents they consider necessary to their claim/defence where it is of critical importance and necessary

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13
Q

PD 5A, 2.2

A

specifies formalities documents must undertake for filing/use at court

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14
Q

Para 5.33

A

Principles to be followed

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15
Q

in whose name must statement be signed by if prepared by solicitor PD 5A, 2.1

A

statement of case prepared by solicitor is to be signed in the firm’s name

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16
Q

Para 1.4 SRA

A

solicitor must not mislead/attempt to mislead the court or be complicit in the misleading acts of others

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17
Q

How can a solicitor draft statement of case without misleading others

A

Only making assertions and putting forward statements that are properly arguable

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18
Q

What if cl files a statement which is erroneous and would mislead court

A

Solicitor advise cl to amend case and if they refuse, solicitor to cease acting for the cl

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19
Q

Para 6.3

A

Duty of confidentiality- solicitor should not inform court of reasons for ceasing to act for cl

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20
Q

What must a particulars of claim include r16.4?

A

a) a concise statement of facts on which the claimant relies
b) if the claimant is seeking interest, a statement to that effect and the details set out in para 2

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21
Q

Primary function of particulars

A

State facts concisely upon which claimant relies

state all facts necessary to show they have a complete cause of action

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22
Q

What if the material facts on the particulars conflict with those in witness statements?

A

May prove fatal to the claim/cast significant doubt upon it Puharic v Silverbond Enterprises

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23
Q

Para 7.3 PD 16 what should be attached to particulars where a claim is based upon a written agreement

A

Where a claim is based upon a written agreement

1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the heading, and

2) any general conditions of sale incorporated in the contract should also be attached (where the contract is, or docs constituting agreement are bulky only serve relevant parts)

24
Q

para 7.4, pD 16

A

Where a claim is based upon oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken

25
Q

Para 8.1-8.2 PD 16 sets out further matters to be included in particulars

A

1) any allegation of fraud
2) the fact of any illegality
3) details of any misrepresentation
4) details of all breaches of trust
5) notice or knowledge of a fact
6) details of unsoundness of mind or undue influence
7) details of wilful default
8) any facts relating to a claim for mitigation expenditure

26
Q

Rule 16.4(2) sets out rules relating to claimants seeking interest

A
27
Q

What if a contract does not provide for interest payment

A

May be entitled to higher rate of interest if Late Payment of Commercial Debts (Interest) Act 1998 applies

May claim under s35A SCA 1981/CCA 1984

28
Q

what must be detailed in the claim

A

Particulars of breach of contract/tortious duty so the defendant knows exactly the manner in which they are alleged to have been i breach

29
Q

Particulars of loss and damage

A

Each head of damage to be itemised

30
Q

And the claimant claims…

A

Relief or remedy to be stated specifically

31
Q

What must particulars be verified by

A

Statement of truth (if particulars are not part of the claim form)

32
Q

What must there be a link between

A

The express/implied terms relied on and the same ones said to have been breached,

The factual consequences of the breach should be the same as that constituting the damage and loss

33
Q

Rule 16.5

A

Sets out what must be contained in the defence

34
Q

How must a defence respond to particulars

A

point by point

35
Q

PD 16, para 11.3

A

Defendant to give details of expiry of any relevant limitation period relied on in their defence

36
Q

r6.23

A

D should give address for service including postcode if they have not filed an acknowledgement of service

37
Q

What if D wishes to make their own claim against C

A

D can make a counterclaim- defence and counterclaim form one doc

38
Q

Is C obliged to reply to a defence

A

May do so but is under no obligation. SHould do so if they need to allege facts in response that were not included in particulars.

r16.7- c who does not reply is not taken to admit the matters raised

39
Q

Role of statements of case

A

comparison of defence and particulars -> identification of issues

40
Q

Amendments before service

A

Party can amend their statement at any time before it is served

41
Q

Amendments with permission

A

After serving statement, party can amend it only with

written consent of all the parties or
the permission of the court

42
Q

What must an applicant file alongside application to amend

A

Proposed amendments with application notice

43
Q

What will the court consider when granting application to amend

A
  • overriding objective
  • Late application (applicant to show the strengths of the new case)
  • late amendment when trial date has been fixed and permitting amendments would cause losing the trial date.
  • ## lateness is relative- review on proposed amendment, quality of explanation for its timing and appreciation of the work wasted and consequential work to be done
44
Q

New York Laser clinic v Natura studios

A

The later the amendment, the greater the need for particularity

45
Q

What happens after court grants amendment

A

applicant must file amended statement of case and serve order and statement on all other parties

46
Q

What if defence requires amending following claimants amendment

A

Court will give permission to amend the other particulars

47
Q

What happens where a claim is made after limitation period passes?

A

Defendant has an absolute defence

if amendment adds or substitutes a new claim, new claim must arise out of the same facts or substantially the same as the claim applicant as already made (Bank of scotland v Watson)

48
Q

r 22.1(2) how is an amendment to particulars verified

A

by a statement of truth

49
Q

Who is reponsible for costs to amend

A

Party applying for amendment

50
Q

Amendment without permission

A

Court may disallow the amendment r17.2

51
Q

What if a party wishes to give the other more info about its case

A

r18.1- court may order a party to

clarify any matter which is in dispute in the proceedings, or

give additional information in relation to such a matter

whether or not the matter is contained in or referred to in a statement of case

52
Q

procedure for acquring further information

A

party should serve written request stating a date for response (reasonable time)

53
Q

Requests must be

A

Headed with the name of the court, title and number of claim

state in its heading that it is a part 18 request, identify the applicant and respondent, and state the date on which it is made

set out each request in separate numbered paragraphs

identify any documents and if relevant any paragraph or words in that document to which the request relates

state the date for a response

54
Q

How is the response vertified

A

By statement of truth

55
Q

What if respondent objects to all/part of part 18 request/cannot comply

A

Inform applicant, giving reasons and date by which they can comply (letter or formal response)

56
Q

No response or inadequate response

A

Applicant apply for court order where no response has been given, at least 14 days have passed since request served and time stated in it for a response has expired Sheeran v Chokri

57
Q

When will the court grant an order

A

If it is satisfied that request is confined to reasonably necessary matters and proportionate to enabling applicant to prepare their case

Litigation (4 decks)

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