Dispute Flashcards
1
Q
application for default judgement - set it aside structure
A
1) what ground (mandatory or discretionary)
a) if mandatory set out the deadlines and how they were respected
- apply Denton v White test
- overriding objective
b) if discretionary
- does it have a good prospect of success
any other reason why?
- perhaps both at the same time
- talk about promptness of application
- overriding objective (for case to be dealt with fairly and at proportionate cost)
- Denton v White
2
Q
application for default judgement structure
A
no real prospect of success (give evidence based on facts) or some other compelling reason (usually because was late, no communication)
- always tie in with overriding objective
3
Q
in criminal advocacy there is no bundle
A
just ask judge whether he has all docs
(in dispute you ask whether has the bundle)
4
Q
what do you do at the end of advocacy regardless of outcome
A
talk about costs!
- if you win say i would like you to address opponent to pay costs (as the defendant has been successful, I urge you that the appropriate order to make is that the claimant pays the defendant costs of X)
- as i have lost i understand my client shall be paying the claimant’s (?) cost
5
Q
application for interim injunction main points
A
1) dealing with serious question of law
2) damages will not be adequate
3) balance of convenience lies in favour of granting injuction
a) the merits of the case (how quickly did you apply - main thing with injunction is promptness + what was the def’s timeline and responsiveness)
b) the status quo
4) mention claimant’s ability to uphold the cross-undertaking
6
Q
Grounds to change/add party within limitation period
A
1) desirable to resolve dispute
2) desirable because an existing part’s interest has passed to them
3) there is a connected issue that needs resolving
7
Q
Grounds to add/change party after limitation period
A
Limitation period must have been current when the proceedings started!
1) named by mistake/died/bankrupt
2) liability has passed to them
3) cannot carry on without them
8
Q
How does a legal representative sign claim form
A
Their own name
9
Q
How does a legal representative sign statements of case
A
In the name of the firm
10
Q
Grounds to claim interest
A
1) its set out in contract itself
2) for SPECIFIED claims b2b Late Payment of Commecial Debts (Interest) Act 1998: 8% above base rate + small statutory compensation for inconvenience
3) court’s discretion:
High Court: s35A of the Senior Courts Act 1981
County court: s69 of the County Courts Act 1984
11
Q
Part 20
A
Counterclaim
Remedies (indemnities, contributions, additional claims)
12
Q
Part 18
A
Request for further info
13
Q
N244
A
Application to court - summary/default judgement (+vary/set aside)
+ summon witness to attend
14
Q
What should there be in response for Part 18
A
Statement of truth
15
Q
Service of N244 forms
A
3 clear days before hearing
(Remember rule of deemed delivery though- need to factor that in)
16
Q
What to do if want to amend statement of case?
A
If its been served, need consent of party
If no response, then ask court
17
Q
How to amend statement of case if limitation period expired
A
Need to fit one of the grounds
1) add/substitute new claim arising on same grounds
2) correct a mistake about a party
3) alter a capacity in which youre claiming
18
Q
What do you do if opponent does not reply to your Part 18 request
A
Apply to court - will grant an order if reasonably necessary and proportionate
19
Q
How does “burden” change if youre doing a injunction without notice?
A
You have duty of full and frank disclosure so must raise anything your opponent would have raised
20
Q
Order was made of interim injunction without notice - how long do i have to respond?
A
7 days from order
21
Q
What type of judge does freezing injunctions?
A
Circuit judge in CC or High Court judge in HC
22
Q
Quirky thing about injunctions without notice
A
(Essentially freezing and search order)
Need affidavit
Apply to High Court
You have duty of full and frank disclosure
23
Q
Difference in burden between applicant applying for summary judgement and defendant?
A
Applicant needs to prove BOTH no real prospect of success + no other compelling reason to go to trial
Def need only prove ONE (has a real prospect OR some other compelling reason) (obvi great if can prove both though)
24
Q
When can u apply for summary judgement
A
Anytime! But would need court permission if def has not yet filled acknowledgment or defence
(Def then won’t need to file a defence)
25
Timings for serving/responding to summary judgement
Def needs to be warned 14 days before hearing
Can file and serve any written evidence up to 7 days before
Applicant can serve further evidence up to 3 days before
26
Key points interim injunction
- remain in force until hearing
- need to give cross undertaking
- asses legal facts, why damages arent adequate, and merits of claim and balance of convenience
27
When can claimant seek interim payment?
Only once period for acknowledgement of service has expired
28
Grounds for seeking interim payment injunction
1) def admitted liability/found liable/if trial proceeded claimant would obtain judgement for substantial amount of money
2) court has discretion of sum awarded but must not be higher than reasonable proportion likely to be awarded in final judgement (counting contributory neg and counterclaim)
29
Case management docs if case is in multi-track
1) case summary
2) disclosure report
3) costs budget
4) costs budget discussion report
30
Are claims automatically struck out if you fail to file directions questionnaire?
No
Unless its for county court money claims and no compliance within 7 days of notice
31
What sum is relevant for allocating track?
You dont include interest, costs, contributory negligence
Take whichever is largest - claim or counterclaim
32
What makes fast track inappropriate
Over 25k
Likely to last more than 1 day
33
Limits on £ small track
Not over 10k
For PI (pain suffering loss of amenity) and road traffic, not over 5k
34
High court or county court?
MUST be in county court if under 100k (or 50k for PI)
May be in High Court if value matches and other things taken into consideration as well
35
Who does case summary
claimant (usually in multi-track)
--> review submissions of fact
--> what is still in disagreement
--> identify key documents
--> key issues of law
(not obligatory but useful)
36
What dates can parties NOT vary
1) trial
2) returning pre-trial checklists
3) pre-trial review date
4) CMC dates
37
Costs of CMC
Usually in the case of
38
what's in the costs budget
current and estimated future costs + statement of truth
39
when do you file costs budget
case under 50k: with directions questionnaire
case over 50k: 21 days before first CMC
40
what happens if you fail to file costs budget?
treated as if your only budget is court fees
41
whats the budget discussions report
gives figure for different phases and says if figure is agreed or not
- complete 7 days before CMC
42
when must costs budget discussion report be comepleted
7 days before CMC
43
amending costs budget?
other party must agree
if no response, can ask court for permission but rare - needs to have been signifciant developments (and will need to give a budget variation sheet)
44
when/why are costs management order imposes?
when judge is not satisfied litigation can be conducted justly or at proportionate costs
(not compulsory)
--> court will only depart from their last approved budget if there is good reason
45
can a party claim more following a costs management order?
its up to judge's discretion, but if they're claiming for 20% more than budgeted, must give a statement explaining difference
46
What do you do if you don't agree with sanctions. you've received?
sanctions: relief
sanction for payment of costs: appeal
--> need to address Denton Factors
47
disclosure timing in small claims
14 days before hearing
(docs + expert report)
48
disclosure timing in fast-track
normally standard (14 d) but can make custom order
49
how to make custom order to vary standard disclosure in fast track
1) parties notify court of custom requirements via disclosure report filed and served at least 14d before first CMC
2)at least 7d before first CMC, parties must agree proposal for disclosure, and if they agree, file it at court
50
thing to remember about disclosure
its only about matters in dispute (dont disclose an email talking about contract if no one is denying there was a contract)
51
whats the scope of search in disclosre
reasonable and proportionate
52
N265
form for disclosure
- state extent for search
- MUST be signed by CLIENT (not legal rep)
- must give reasons for not allowing inspection of certain docs
53
can you use new docs if you want (disclosure)?
duty to disclose is continuous
but you would need other party's consent (and if no court)
54
do you disclosure prejudice correspondence or genuine attempts to settle
yes but in part 2 (judge not aware of content)
55
how to make a request for further info?
Part 18
writing
must be granted within 7 days
56
what are the things claimant has no burden of proving?
- contributory neg
- mitigation of loss
- where def has perviously been convicted of relevant criminal offence, claimant does not have to reprove issues (def must disprove conviction on balance of prob)
57
what do you do if you want to use a witness
serve a witness statement on the other side
58
difference with adducing witness evidence in criminal and civil court
in civil you MUST serve a witness STATEMENT on the other side, with all the relevant info
in criminal you DO NOT serve STATEMENT, but must serve witness notice (name, address, date of birth) + defence statement
--> you would only serve the witness statement if the witness is not attending court (s9)
59
what happens if you fail to serve witness statement
cannot call witness without court permission!!
must make notice application before deadline to serve witness statement has expired
60
what can you do if you can't serve a witness statement?
apply to serve WITNESS SUMMARY
- don't need to give notice
- include the evidence the witness can provide if this is known, or if not, the matters on which they will be questioned on at trial
61
what do you set out in case summary
(prepared by claimant)
matters still in dispute
- set out chronology
- factual issues agreed/not
- evidence needed to decide
--> SIGNED and DATED
will assist judge in deciding how case should proceed to trial (in CMC)
62
costs budget formality
need to have date and statement of truth (can be signed by legal rep)
63
how to challenge sanction that for failing to file costs budget on time
(either w directions questionaire or 21d before CMC)
= treated as only having court costs
--> apply the Denton test
64
what are potential sanctions court can impose for failure to comply
1) costs (pay additional or on indemnity basis)
2) interest (increase/decrease)
3) unless order: condition to be fulfilled otherwise strike out
4) strike out case: most extreme
65
when are applications for relief of sanction heard.
can be heard at the CMC
66
what does court consider to give relief to sanction
all circumstances of the case, including
1) need for litigation to be conducted efficiently and at proportionate costs
2)need to enforce compliance with rules, practice directions and orders
--> could apply Denton test
* crucial that you apply QUICKLY
67
what's the point of the disclosure statement
explaining limitations, why disclosure has been altered (eg difficulty, expense, ...)
68
can you dispute priviledge?
yes, must apply to court
court may invite any person (whehter party of case or not) to make representation and will determine whether it has been correctly categorised
--> the issue is that the effectiveness of this is limited by the brief description of docs in part 2 = makes it difficult to evaluate
69
can you do pre-action disclosure?
yes, if its youre unsure of strength of claim
but different from normal disclosure, the party being requsted does not need to disclose documents which adversely affect their own case!!
70
how do you apply for pre-action disclosure
need witness statement and court must be satisfied that:
1) both applicant and respondent are likely to be part of subsequent proceedings
2) document sought would have come into standard disclosure
3) disclosure is desirable to assist fairly and assist the dispute to be resolved without proceedings or save costs
71
how do you apply to 3rd party disclosure?
1) request them directly
2) if no voluntary disclosure, apply to court with supporting evidence:
a) documents in question are likely to support case/adversely affect other
b) disclosure is necessary to dispose fairly case or to save costs of case
c) specify documents and require non-party to specify which docs are no longer in their control/privileged
72
what's the point of a witness summary notice
its used when you don't know if you can obtain a witness statement and basically alerts the opponent of possibility that you might have a witness later
--> informs of who witness is and issues they might raise
--> its important because other side then has notice - which means that if you later apply for permission to call witness, party is less likely to disagree
73
who can sign witness statement?
only the witness themselves
74
can witness add more evidence in court which wasnt in statement<,
only if judge is satisfied there is a good reason for it (rare)
75
how to use hearsay?
bottom line is that it is admissible, but need to make sure you serve a HEARSAY STATEMENT on the other party =
witness statement + hearsay notice (the hearsay notice basically explains party won't be coming in to court)
76
what is hearsay?
statement said outside court + repeated in court + relevant to matter + to prove TRUTH of matter
77
ground for claiming freezing injunction
good arguable case + high risk consequences if not
78
ground for claiming search order
incriminating materials which cannot be obtained by other means + claimant will suffer serious harm + has strong case
79
what does court look at to determine interim payment
1) should an order be made? this will look at facts of the case and likely to be NO if there are complex points of law
2) if yes, how much should be awarded (not more than reasonable proportion of sum likely to be awarded + contributory neg etc)
80
what happens if youre not planning to call your witness into court?
the whole statement becomes hearsay
make sure to serve the witness statement (as usual) AND hearsay notice
81
3 types of docs that may be needed for witness/hearsay
1) witness statement
2) witness summary (no statement)
3) hearsay notice (+witness statement)
4) witness summons
82
what happens if you receive/send hearsya notice to other side
other side can apply (serve notice) to attack credibility of evidence
83
what happens if you dont comply with hearsay requirements?
can still use statements (admissible) but less weight attached to it
court looks at:
a) what issue does evidence address
b) how important is the issue in the case
c) what other evidence is available on same issue
d) is hearsay more probative than any other evidence party could obtain
+ look at factors as contemporaneous of statement, would it have been reasonable and practicable to call real person, is it multiple hersay, was it edited, are there any personal motives
84
difference between failing to comply with witness and hearsay requirements
hearsay: still admissible but little weight
witness: cannot call witness without leave of court (rare)
85
witness summons time
at least 7 days before trial
if EXACTLY 7 days or LESS, must notify court in writing requesting permission to issue summons (if no permission, summons not binding)
--> for it to be effective, witness must be offered reasonable compensation for time/travek
86
when and by who is trial bundle fialed
7-3 days before trial
by claimant
87
grounds for appeal
1) real prospect of success, OR
2) some other compelling reason
--> there is no right to appeal, must apply via appeal notice
88
grounds for appeal to SUCCEED
1) former decision was wrong
2) formed decision was unjust because of procedural irregularity
89
timing for appeal
via appeal notice
21d for county court/HC
28d for Court of Appeal
90
how is an appeal held
lower courts: usually on paper
higher courts: will set date (oral) usually within 14d if believes cannot be determined without presence of parties
91
grounds to do a second appeal
1) real prospect of success, OR
2) some other compelling reason
AND
important point of principle or practice
92
what to do if request for appeal is unsuccessful
can apply to court of appeal itself! (will need permission from court obvi)
93
how to do leapfrog appeal (straight to CoA)
1) real prospect of success
2) some other compelling reason
3) important point of principle or practice
94
how to leapfrog straight to Supreme Court?
1) real prospect of success
2) some other compelling reason
3)important point of principle and practice
+ point of general law and public important
95
process for leapfrog appeal
2 stage
1) trial judge grants leapfrog certificate
2) higher court (CoA or SC) gives permission
96
when are directions for expert given
allocation of case or CMC (need to ask permission)
* usually SJE for fast-track
97
are instructions to expert priviledged?
normally no
but court will normally not order disclosure of instructions, or permit questioning - unless court has reasonable grounds to believe instructions are inaccurate/incomplete
98
who makes opening speech
needs to be permitted by judge (usually is) and normally claimant
99
who makes closing speech
def then claimant
100
how are costs assessed in each track
small: legal costs not recoverable - just disbursements
fast: summarily + trial costs fixed at £1650 if damages under 15k
multi: detailed (at subsequent hearing unless parties agree amount)
101
what costs can you recover in default judgement
fixed costs only (generally)
102
how does summary assessment work
court determines amount payable (no fixed costs) at same hearing. it's the general rule and should be used unless good reason to depart
--> applicable to conclusion of FAST TRACK trial or any trial that did not last longer than 1d (eg interim hearing)
--> parties must file and serve statement of costs 2 days before FAST TRACK and 24h before interim
103
types of hearing where costs are summarily assessed
1) fast track
2) anything not longer than 1 day (eg interim)
104
deadline for serving/filing statement of costs
1) fast track: at least 2 days before hearing
2) interim hearing: 24h before
105
how does detailed assessment of costs work
on multi-track
1) within 3m of date of judgement order, winner serves on paying part
- notice of commencement
- bill
-evidence (receipt)
2) paying party has 21 days to dispute (receiving party disputes within 21d from that)
3) winner must file request for assessment hearing within 3 months of period of commencing detailed assessment
4) costs less than 75k: provisional assessment without parties (21d to dispute) (but if fail to get adjustment of over 20% have to pay costs of hearing)
106
how are costs assessed on standard basis
1) looks at each cost to see if reasonably incurred + reasonable amount
2) look if its proportional to overall costs of case (complexity, conduct, relief..)
--> any doubt is resolved in favour of PAYING party
--> costs deemed unpropportional can be reduced or dismissed
107
how are costs assessed on indemnity basis
1) reasonably incurred and in amount?
2) NO QUESTION OF PROPORTIONALITY = can be unproportional
--> any doubt resolved in favour of RECEIVING party
108
key difference between costs assessed in standard adn indemnity basis
no test of proportionality in indemnity
resolved in favour of paying party in standard and in favour of receiving party in indemnity
109
qualified one way costs shifting
- only for PI cases
-unsuccessful claimants (including counter claims) need only pay defendant's costs if court gives permission (probably only where claimant is found, on balance of prob, to have been fundamentally dishonest)
110
Part 25
provides assistance to defendants who have concerns that if they win, claimant may actually not have funds to pay damages/recover costs
111
when will court make order for part 25
1) court is convinced it is just in all circumstances to make order
2) one or more of the conditions are satisfied
112
part 25 conditions
1) party is resident outside Hague State (non UK/EU) (where they live/company management is)
2) party is impecunious COMPANY (need to establish there is reason to believe they WILL be UNABLE to pay eg give evidence of finances)
3) party has taken steps to make enforcement difficult (move assets, didn't disclose them..)
--> then court will look at justness of making order
113
part 25 justness factors
1) strenght of claim of defence
2) claimant's ability to provide security
3)causes of claimant's impecuniosity
4) property available within jurisdiction
5) TIMING of application
114
what's the procedure for a Part 25
1) ask claimant for security to be provided voluntarily
2) (if not voluntary) apply to court (form part 25 + witness statement)
3) satisfy order (condition) + justness
--> evidence must establish condition exists + persuade court amount sought is just
115
enforcement of costs
1) taking control of goods
2) charging order
3) third party debt order (TPDO)
4) attachment of earnings
116
taking control of goods
- sell them at public auction
- HC with writ (over 5k always)
-CC with warrant (under 600)
- can force entry in business (no residential part)
- necessary items are exempt + cannot take work stuff w max aggregate value of 1350 + hire-purchase agreements
--> can enter controlled goods agreement
117
Pro and Con of Taking control of goods
CON: can't be residential
- not guaranteed to obtain all money due because of logistical issues, lower re-sale value etc
PRO: can use reasonable force to break in business
- HCEO seen as more efficient
118
charing order
need it if you want to enforce over LAND or SECURITIES (stocks or shares)
--> similar position as mortgagee --> order sits on asset for long time
- can be made in respect to land jointly owned (in that case its on debtors equitable interest)
--> need to register at Land Charges Dept (unreg) or Land Registry
--> need to apply to court for power of sale, HC/CC if over 5k otherwise CCMCC
119
how to choose which enforcement order for costs?
ultimately depends on what assets the paying party has
1) is it land or securities? charging order
2) is it a commercial premise with goods? taking control of goods
3) are they self-employed? attachment of earnings would not work
4) what is their employment like
5) whats their bank account like (must be in their sole name for TPDO)
6) timeline
120
procedure for charging order
1) interim charging order stage: file application + draft ICO (can be made without notice) + docs in support
2) served on debtor within 21d
3) debtor can request it to be reviewed within 14d
4)final charging order stage
a) anyone objects must file within 28d of serving order
(court will transfer it to homecourt of debtor)
3) order for sale (if FCO is final, but will need new proceedings)
121
pros and cons of charging order
con: not immediate
not always effective, particularly if debtor has many other mortgages or charges + application for order of sale might fail (if someone else living there)
pro: secures debt and may encourage debtor to try to settle
122
third party debt order
for banks or building societies
Part 27
- apply to court that made costs order
-can be done without notice
- judge makes interim order freezing account
- hearing listed max 28d later and looks at objections etc
NEEDS TO BE IN DEBTOR SOLE NAME OTHERWISE FAILS
123
Part 27
third party debt order
124
pros and cons Part 27 (third party debt order)
pro: surprise effect
con: aware debtor might be preemptive and move funds regardless
125
attachment of earnings (enforcement of costs)
cannot be self-employed
must be employed
--> must apply to CC (HC has no enforcement, if judgement in HC will have to move it)
1) apply to CCMCC
2) court notifies debtor to either give sum or attachment of earnings
3) court then makes order, which specifies monthly deduction rate and protected earnings rate
4) judge not involved unless insufficient info on attachment
126
Pros and cons attachment of earnings order
CON: issue if they lose their job, change job (will have to repeat process)
court may order very low instalment so repayment would take very long
127
defendant moved to scotland/ireland, how do you enforce costs?
apply to new court with evidence and register judgement within 6m
128
how to enforce costs in commowealth
have 12 months if HC
6 years if CC
129
how to enforce costs judgement in other countries (non-UK, non commonwealth)
hague convention? = enforced and recognised
otherwise common law = will essentially have to issue fresh proceedings (will have to determine it regarding national law of particular country)
130
how to determine with enforcement way
cost-efficiency
131
how to know about debtors finances
1) apply for court order
--> name + address + amount owned
--> order is personally served to debtor, has 7 days to request travel expenses
--> hearing at debtor's local county court (committal order against them if they fail to attend)
2) instruct enquiry agent (they go there personally, good if debtor is reluctant/not giving much info but very expensive)
132
whats the 14/7/3 timing rule for
summary judgement
interim payment
133
injunction timings and default judgement
3 clear days before (+add 2 days for deemed service)
134
new track
intermediate track (25k - 100k)
max of 3 parties
max 3 days
max 2 experts either side
--> claims are assessed based on complexity
1- simple debt
4- most complex negligence
--> parties encouraged to agree on complexity track, but otherwise court will impose it
135
consequences of Part 36 offer by DEF
1) claimant wins and beats offer: def pays standard costs + enhanced interest on fixed costs at max 10% above base rate
2) claimant wins but does not beat offer: split cots
def pays costs up to D21 (no interest)
claimant pays costs from D22 until judgement + interest of 1 or 2%
3) claimant loses: pays def costs on standard basis + interest on 1 or 2%
136
consequences of Part 36 offer by CLAIM
1) claimant wins and beats/equals: def pays costs + interest standard + 10% on damages up to 500k and 5% on rest (up to 75k)
pays 35% uplift on fixed costs from D22
2) claimant wins but less than offer: no effect - def just pays costs + interest on standard basis
3) claimant loses: no effect - pays def costs and interest on standard basis
137
key things to mention when talking about setting aside default/summary judge
1) tie back to overriding objective
2) talk about promptness of application
3) REALLY IMPORTANT to mention prejudice claimant would suffer
4) evidence of grounds + strength of defence
--> remind client court may attach conditional grounds (for may in default judge)
138
factors judge looks at when setting aside default judge
1) promptness
2) nature of defence
3)good prospect
4) other compelling reason (Denton test)
5) damage to claimant and how this ties to overriding objective
139
can't forget to address in application for interim payment
1) how much is being asked
2) what it will be used for (+why need it before trial)
satisfies grounds + likely to be awarded X sum + address contributory neg
140
explain how my case will be allocated to a track
1) overriding objective
2) provisional allocation
3) complete directions questionnaire (confirms allocation, set out if you need expert, if you think another allocation is more suitable)
4) depends on costs + complexity
5) might have a CMC OR standard directions (explain each)
6) make sure you have the right documents
7) explain potential penalties if you dont comply with directions
141
what must you always mention if theres an oral agreement
- by whom
- to who
- where and when
- what exactly was said
142
checklist for drafting Part 18
1) title it Part 18 - Request for Further Info
2) say which day request is made and when you expect response
3) each para say from what paragraph and what doc (eg para 1 particulars of claim) you want more info and WHAT INFO you need
- if need more than one info (more than 1 question) per doc, use a) b)
143
defence and counterclaim drafting checklist
DEFENCE
1) 1st para say the paragraphs numbers referred to in this document make reference to (...). The definition used in (...) have been adopted
2) admit, deny etc
3) always rewrite the paragraph that says 'purported' (say you did full and complete performance of contract and details of when and how)
4) responding to paragraphs about loss: It is not admitted that (...) as the Defendant has no knowledge of these facts. If, which is not admitted, (...) it is denied that the Defendant caused such loss.
- say it was caused by claimant
- could say here that claimant failed to mitigate (give details why unreasonably large)
- say loss is too remote here (further, as to the allegation of loss (XX) in paragraph XX, if, which is not admitted, that loss is sustained, it is the Defendant's case in reliance to the paragraph above that such loss is too remote)
5) finish with: It is therefore denied the Claimant is entitled to any relief.
COUNTERCLAIM
6) continue numbering - repeat initial paras of the defence
7) owning to the above, the Defendant has suffered loss and damage
PARTICULARS OF LOSS AND DAMAGE
a) loss
b) interest claimed
144
draft paragraph of defence responding to claimant's paragraph of loss
'As to paragraph X, it is denied that (......) as the Defendant has no knowledge of these matters. If, which is not admitted, it is found that (....) it is denied that the Defendant caused this. - say how claimant caused himself + failure to mitigate loss'
145
how does a manager of a company sign a statement of truth
'the claimant/defendant believes that....'
name: their own
position: position held at claimant/defendant
146
particulars of claim BoC checklist
1) at all material times (...)
2) by a written/oral contract
3) agreed to do X in course of business (with reasonable care and skill (...)
4) add if any special information was agreed
5) in purported performance
6) in breach of XX (implied, express term?)
PARTICULARS OF BREACH OF CONTRACT
+ what happened as consequence of breach
PARTICULARS OF LOSS AND DAMAGE
and the claimant claims
1) damages pursuant to X
2) interest pursuant to X
147
draft defence when you have no knowledge of facts
The Defendant makes no admission as to the facts in paragraph X as the Defendant has no knowledge of these matters
** dont forget the extra wording if its para about loss/consequences of breach
148
key thing to remember about 'at all material times' paragraph
if parties are companies, need to say name of person they were acting through
'the claimant was a company specialised XXX and acted through its X direction XXX'
149
key thing to remember about drafting PoC
put definitions as early as possible (like max 3 first paras)
If there is a contract, say it is attached in Schedule 1
150
what do you do in a PoC/counterclaim before 'particulars of breach/negligence' section
add paragraph reiterating your point:
It is the C/D's case that the C/D (is in breach of contract for X) (has been negligent in X)
151
how does a reply to defence work?
in the same way as a defence - you need to address every single paragraph and say if you admit/deny/no admission
--> end it with 'except where the Defendant has made admissions and except as appears in this statement of case, the Claimant joins issue with the Defendant upon his Defence'
152
what must you always do in any sort of counterclaim (to claim or to defence)
Deny party is entitled to any damages whatsoever
153
whats the difference in drafting a defence/POC for breach of contract or negligence?
BoC: Particulars of Breach
negligence: Particulars of Negligence/Particulars of Breach of Statutory Duty (if OLA 1957)
--> same 'at all material times intro'
--> second para in BoC you're detailing contract formation and terms, in negligence you detail duty of care and context
--> before particulars in BoC you set out breach of contract and which term (express/implied)
In Negligence you set out breach of what duty and how (colliding car/giving bad advice...)
154
what do you always have in a counterclaim
1) The Defendant repeats paragraphs X to X of the Defence
2) Owning to the above matters, the Defendant has suffered loss and damage
PARTICULARS OF LOSS AND DAMAGE
+ interest (s69/s35/ Late Payment/contract)
AND THE DEFENDANT COUNTERCLAIMS
(1) damages pursuant to
(2) interest pursuant to
155
what do you always add after particulars of breach/particulars of negligence
Owning to the above, the C/D has suffered loss and damage
(and then you can add particulars of loss and damage)
156
thing to think about is claimant claiming you were negligent eg driving on their property
deny it and counterclaim with OLA 1957 (breach of statutory duty!!!)
- unsafe
- exposed def to danger and foreseable risk of damage
- failed to take proper care of def's safety
157
key things to add in expert report
1) qualification
2) instructions
3) info + source
4) conclusion (it is my opinion that...)
5) duty to court
6) statement of truth
