3. Statements of case/ Particulars of Claim Flashcards
What if an issue is not stated in the statement of case
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
What are statements of case
Formal docs in which parties concisely and precisely set out their respective cases
What is the aim of statement of case
Identify issues to be determined
2.3 defines a statement of case as
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
What is the defendants statement of case called
a defence
WHere are the rules for statements of case contained in
Part 16 CPR
Key tenet of a statement of case
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
Are the contents of a statement of case evidence at trial
No- Arena property services v Europa. Statement of case is not meant to contain evidence
PD 16, para 1.3: what does a statement of case have to be?
Statement of case to be concise- where it exceeds 25 pages, appropriate short summary to be filed
PD 16, para 12.2
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
What is the extent to which witnesses ought to be named
excessive factual details unnecessary, party can state name of any witness he proposes to call
can a party attach any documents to the statement of case?
documents they consider necessary to their claim/defence where it is of critical importance and necessary
PD 5A, 2.2
specifies formalities documents must undertake for filing/use at court
Para 5.33
Principles to be followed
in whose name must statement be signed by if prepared by solicitor PD 5A, 2.1
statement of case prepared by solicitor is to be signed in the firm’s name
what must a solicitor not do, according to Para 1.4 SRA
solicitor must not mislead/attempt to mislead the court or be complicit in the misleading acts of others
How can a solicitor draft statement of case without misleading others
Only making assertions and putting forward statements that are properly arguable
What if cl files a statement which is erroneous and would mislead court
Solicitor advise cl to amend case and if they refuse, solicitor to cease acting for the cl
Para 6.3
Duty of confidentiality- solicitor should not inform court of reasons for ceasing to act for cl
What must a particulars of claim include r16.4?
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
Primary function of particulars
State facts concisely upon which claimant relies
state all facts necessary to show they have a complete cause of action
What if the material facts on the particulars conflict with those in witness statements?
May prove fatal to the claim/cast significant doubt upon it Puharic v Silverbond Enterprises
Para 7.3 PD 16 what should be attached to particulars where a claim is based upon a written agreement
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)
What should a claim particulars include where a claim was based on an oral contract para 7.4, pD 16
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
Para 8.1-8.2 PD 16 sets out further matters to be included in particulars
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
Rule 16.4(2) sets out rules relating to claimants seeking interest
What if a contract does not provide for interest payment
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
what must be detailed in the claim
Particulars of breach of contract/tortious duty so the defendant knows exactly the manner in which they are alleged to have been i breach
Particulars of loss and damage
Each head of damage to be itemised
And the claimant claims…
Relief or remedy to be stated specifically
What must particulars be verified by
Statement of truth (if particulars are not part of the claim form)
What must there be a link between
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
Rule 16.5
Sets out what must be contained in the defence
How must a defence respond to particulars
point by point
PD 16, para 11.3
Defendant to give details of expiry of any relevant limitation period relied on in their defence
r6.23
D should give address for service including postcode if they have not filed an acknowledgement of service
What if D wishes to make their own claim against C
D can make a counterclaim- defence and counterclaim form one doc
Is C obliged to reply to a defence
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
Role of statements of case
comparison of defence and particulars -> identification of issues
Amendments before service
Party can amend their statement at any time before it is served
Amendments with permission
After serving statement, party can amend it only with
written consent of all the parties or
the permission of the court
What must an applicant file alongside application to amend
Proposed amendments with application notice
What will the court consider when granting application to amend
- 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
New York Laser clinic v Natura studios
The later the amendment, the greater the need for particularity
What happens after court grants amendment
applicant must file amended statement of case and serve order and statement on all other parties
What if defence requires amending following claimants amendment
Court will give permission to amend the other particulars
What happens where a claim is made after limitation period passes?
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)
r 22.1(2) how is an amendment to particulars verified
by a statement of truth
Who is reponsible for costs to amend
Party applying for amendment
Amendment without permission
Court may disallow the amendment r17.2
What if a party wishes to give the other more info about its case
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
procedure for acquring further information
party should serve written request stating a date for response (reasonable time)
Requests must be
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
How is the response vertified
By statement of truth
What if respondent objects to all/part of part 18 request/cannot comply
Inform applicant, giving reasons and date by which they can comply (letter or formal response)
No response or inadequate response
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
When will the court grant an order
If it is satisfied that request is confined to reasonably necessary matters and proportionate to enabling applicant to prepare their case
