DR 8 Flashcards
What is a Statement of Case?
Collective term given the Particulars of Claim, and defences
What is the purpose of a Statement of Case and what must it provide to be adequate?
The purpose is to provide an outline of the party’s case on liability, causation, and quantum i.e. enough information for the judge to give directions in keeping with the overriding objective.To be adequate, it must provide details of the cause of action, the exact nature of allegations, and the financial consequences.
What must be included in the Particulars of Claim in a contract claim?
- The parties to the agreement* The nature of the agreement* Terms that may have been breached* Facts showing breach and losses* A prayer for relief (that is, the remedy sought) and * A statement of truth
What must be included in the Particulars of Claim in a claim arising from a road traffic accident/general personal injury claim?
- A brief description off the collision (including date, time, and place)* Allegations of negligence* Details of any relevant conviction relating to the same offence (failure to raise this will lead to objections from defendant when you try to further on)* Details of injuries suffered* A schedule of past and future losses* A prayer for relief (that is, the remedy sought)* A statement of truth
What must a claimaint do when they are claiming interest on damages?
- State the basis for the claim, i.e., contract, statute2. State the % interest rate if the claim is for a specified sum3. Date the claim for interest ends4. Total amount claimed
What must be included in the Particulars of Claim in a tort claim for employer liability?
- Facts establishing an employer-employee relationship* Description of the circumstances of the injury* Allegations of breach* Details of injuries suffered* A schedule of past and future losses * A prayer for relief (that is, the remedy sought)* A statement of truth
What eight things must a claimant include in the Particulars if they wish to rely on them?
- Allegations of fraud2. Illegality3. Misrepresentation4. Breach of trust5. Knowledge of a fact6. Unsoundness of mind or undue influence7. Willful deceit8. Defendant’s failure to mitigate loss
If a defendant wishes to defend a claim, on whom must they service the defence?
Every other party to the claim
What are the three ways in which a defendant can respond to each of the paragraphs in the particulars?
- Admit2. Deny3. Non-admissionNote, the defendant must respond to each of the paragraphs in one of the three ways
What occurs when defendant admits a paragraph, and what is the consequence of failing to respond?
The paragraph is no longer in dispute and the defendant does not have to prove it.Failure to respond means a paragraph is deemed admitted
What must a defendant do if they deny a paragraph?
State reasons for doing so, and set out an alternate version of eventsIf they do this, the claimant must prove their facts
When may a defendant neither admit nor deny a paragraph?
When the facts alleged in the paragraph are outside the defendant’s knowledgeIf they do this, the claimant must prove their facts
If the defendant disputes the claimant’s statement of value, what should they do?
Say why and, if possible, provide the defendant’s value
What happens when the defendant admits damages but denies liability?
They are admitting a damages sum, but it will only be payable if the court finds the claim is proved
What must the defendant do if they raise a limitation issue in the defence?
State the date on which the defendant alleges the limitation period expired, with the reasons why
What is set off, and what type of claims is it most common in?
Where a claimant sues defendant, but defendant is owed money by the claimant, they may apply to have the amount of damages they will have to pay set off by the amount owed to them.Most common is debt claims.
What is a reply, is it mandatory, and when will it typically be used?
A reply is an optional response sent by claimant to defendant, usually only if something has been raised in the defence which requires a response
Can the reply be used to rectify mistakes or omissions from the Particulars of Claim?
No. It can only be used to deal with points raised in the defence which were not covered by the Particulars
What are the four types of claim available to a defendant under Part 20?
- Counterclaim2. Claim against a third party3. Claim seeking contribution or indemnity4. Counterclaim against another third party
What are the four key features/requirements of a counterclaim under Part 20?
- Brought by existing defendant against the claimant2. Arises out of the same or substantially the same facts as the claimant’s claim against defendant3. Monetary claim in its own right4. Is not a defence
When will the defendant not require court permission to file a counterclaim, and when will they need court permission?
Does not need court permission if counterclaim is filed with defence.Does need court permission if filed at any other time.
What are three features of a claim against a third party under Part 20?
The defendant claims that a person who is not a party to the action has caused the claimant’s losses1. New party will be called a third party2. Application can be made without court notice, unless directed otherwise3. Particulars of the additional (?original?) claim must be contained in or served with the additional
When will the defendant not require court permission to file a claim against a third party, and when will they need court permission?
Does not need court permission if claim is issues at or before the defence is filed.Does need court permission if filed at any other time.
What is a claim seeking contribution or indemnity under Part 20?
Notice served on another party that they must pay the serving party some (contribution) or all (indemnity) of the payment the serving party is ordered to pay the claimant if they are found liable
When will the defendant not require court permission to file a claim seeking contribution or indemnity, and when will they need court permission?
Does not need court permission if claim is filed and served with defence OR claim is against third party who was not added to the claim until later in the action, and that party is served within 28 days of filing their defence.Does need court permission if filed at any other time ,subject to that one late third party exception.
What is counterclaim against a third party under Part 20?
A defendant may bring an additional claim against a person against whom the defendant has a monetary claim arising out of the same facts as the main action, where the third party is not already a party to the caseCan only be made by order of the court
What is always required for a counterclaim against a third party under Part 20?
A court order
How is an additional Part 20 claim served in cases where permission is not required?
It is served on each party to the claim when the defence is filed
How is an additional Part 20 claim served if issued by the court later than the defence?
It must be served on the person against whom it is made within 14 days
Within what timescale of service must a defence to a counterclaim be served, and what is the consequence of failing to do so?
Within 14 days of service of the counterclaim. Failing that, the original defendant can obtain judgment on the counterclaim
Where additional claims are brought by the defendant, what must the additional party do where (1) they are already a party to the case, and (2) they are not already a party to the case?
- File a defence, if already a party2. File an acknowledge and/or defence, if not already a party
How should you consider a counterclaim from a process and timing perspective?
Think of it in the same way as a standard claim from the perspective of timing, filing requirements, and the availability of default judgment
If a party wishes to make a request for information from the other side, do they need to go through the court for this?
Only if the party does not adequately respond
In the context of a request for information, when will the court have a hearing to consider the matter, and when will they consider the matter without a hearing?
No hearing: Party has not responded at allHearing: all other situations
What are five grounds for objecting a request for information?
- Unnecessary, irrelevant, or improper2. Unable to provide information/clarification3. Insufficient time to reply4. Disproportionately expensive to reply5. PrivilegeIf a party objects to responding for a request for information they must state their reasons.
What is a required for a request for information to be relevant?
It must relate to matters which are disputed by the parties
What is required to amend a Statement of Case before it has been served, and after it has been served?
Before: can be amended at any time without permissionAfter: written consent of all parties or court permission required
If an application is made to add a party to the case, what are the two considerations the court will give, either of which is enough?
- Desirable to add the new party, so the court can resolve all matters in dispute or2. Issue involving the new party and an existing party which is connected to the matters in dispute, and it is desirable to add to resolve this
What are the two requirements which must be satisfied for a court to grant an application substituting a party?
- Existing party’s interest or liability has passed to the new party (e.g. assignment, merger) and2. Desirable to substitute the new party, so the court can resolve all matters in dispute
When might the court order a person to cease to be a party to an action?
If it is not desirable for them to be a party in the proceedings
What is required to add or substitute a party after the limitation period has expired?
- Relevant limitation period must have been live when proceedings were started, and2. The addition or substitution is necessary
In determining whether to add or substitute a party after the limitation period has expired, what three things will the court consider (one of which is enough) in determining whether the addition or substitution is necessary?
- New party is being substituted for someone who was named in the claim form by mistake2. Claim cannot properly be carried on against the original party, or3. Original party has died or had a bankruptcy order made against them
