DR WS3 - Statement of Case

Question 1

What is a statement of case?

Answer 1

• Document that sets out the party’s case in civil litigation
• Are in various forms depending on the circumstances and whether the party is a claimant or a defendant

Various forms included
* Claim form
* Particulars of claim
* Defence
* Reply to Defence
* Part 20 Claim
* defence to Part 20 claim

Question 2

What are the ethical considerations of a statement of case?

Answer 2

• A solicitor must not mislead the court.
• Should only include assertations in the statement of case that are properly arguable

E.g. filtering out client’s responses, if there is no evidence that the other side acted fraudulently, the solicitor shouldn’t add it in unless they have proper evidence.

Question 3

What If a client files a statement of case and then tells their solicitor that it contains a material error, what should the solicitor do?

Answer 3

• Solicitor should advise the client to amend the statement of case and if the client refuses to do so, should cease to act

In order to keep client confidentiality, the solicitor should not inform the court or any other party of the reasons why they are no longer representing their client.

Just say ‘professional reasons’

Question 4

What is the difference between a claim form and a particulars of claim form?

Note - a claim form is a statement of case and particulars of claim form is also a statement of case

Answer 4

• A claim form has basic details
• Particulars claim form explains the situation in more detail

Question 5

What is the purpose of a claim form?

Answer 5

Document used to start proceedings and contains information relevant to the proceedings.

Question 6

How should addresses be listed on the claim form?

Answer 6

The parties’ addresses are the addresses for service, but the claimant must also indicate an address where it residies or carries on business, if different.

If it is a company / partnership must ensure they are identified as the claimant party.

Question 7

What is the purpose of a particulars of claim form?

Answer 7

Set out in CPR 16.4 which states that it should provide the following
* Concise statement of the facts on which the claimant is relying
* details of any interest that the claimant is claiming
* a statement and accompanying grounds if the claimant is seeking either exemplary damages or aggrevated damages
* any other matters required for the type of claim are set out in the relevant Practice Direction

Question 8

What is exemplary damages?

Answer 8

AKA Punitive damages
* Designed to punish the defendant if the allegations regarding their poor conduct contained in the particulars of claim are proven
* The aim of exemplary damages being awarded is to deter the defendant and others from behaving the same way in the future

Question 9

What is aggravated damages?

Answer 9

These are damages claimed because the defendant’s behaviour has caused the claimant mental distress, injury to feelings or anguish.

Question 10

What is the structure of a particulars of claim form?

General

Answer 10

A Particulars of claim must include:
CPR 16.4(1)
* A concise statement of the facts on which the claimant relies.
* If the claimant is seeking interest, a statement to that effect and the details.

Pages must be:
* Numbered
* Numbered paragraphs
* All numbers, including dates, must be expressed as figures e.g. 7 October 2024 not 7.10.24 and £5,000,000 not 5million.

The Queens Bench Guide
* Must be in chronological order
* Each paragraph should only contain one allegation

Question 11

What is the structure and contents of a particulars of claim in contract?

Answer 11

1) Parties to the claim and their status
2) Factual chronology
3) The contract and its terms
4) How the contract was allegdly breached
5) Consequences of breach
6) Damages claimed
7) Interest claimed
8) Statement of truth

Question 12

Particulars of claim - breach of contract

What is meant by factual chronology?

Answer 12

• Give concise chronology of all material facts which relate to the legal basis of the claim

Question 13

Particulars of claim - breach of contract

What is meant by the contract and its terms?

Answer 13

• When the contract was entered into
• What was it for
• If written - must attach a copy of contract (PD, para 7.3)

If the contract was oral:
* State the contractual words used
* By whom
* To whom
* When
* Where they were spoken?

Terms
* Express
* Implied terms (e.g. contract contained implied terms of reasonable care and skill, satisfactory quality)

Question 14

Particulars of claim - breach of contract

What is meant by how the contract was allegedly breached?

Answer 14

What terms were breached and how?
* E.g. defendant breached clause 5.1 of the Service Agreement
* In breach of the implied terms, the Defendant did not carry out the services of building works with reasonable care and skill

Details of exactly what the claimant did wrong must be itemised explained clearly

Question 15

Particulars of claim - breach of contract

What are the consequences of breach?

Answer 15

• Factual consequences: continuation of chronological events claimant explains what happened as a result of what the defendant did wrong (the breach) e.g. poor repair work
• How this impacted the claimant

Question 16

Particulars of claim - breach of contract

What is meant by damages?

Answer 16

Damage and loss alleged and particularised - e.g. due to a breach of contract, the claimant has suffered damage and los

Question 17

Particulars of claim - breach of contract

What is meant by ‘interest claimed’?

Answer 17

Express provision in the contract
* Seek interest at the contract rate pursuant to the clause in the contract

No express provision in the contract (is a specified claim e.g. non-payment of goods and services)
Seek interest rate pursuant to The Late Payment of Commercial Debts (Interests) Act 1988.
* annual statutory rate of 8% per annum above the Bank of England’s base rate on the date the debt become due for payment
* Claimant is also entitled to a small described amount of statutory compensation for the inconvenience of having to record debt

The interest sum claimed should be broken down into the daily rate of interest and how many days have elapsed since the date of breach to the date of the commencement of proceedings. The paragraph should make a claim for ongoing interest on a daily basis until the date that a final judgment or order is made.

Question 18

Particulars of claim - breach of contract

How is the interest calculated in a specified claim?

Answer 18

A specified claim is where the claim is for a fixed amount which the court does not have to determine, i.e. repayment of a debt - debts are specified at the outset.

Interest is calculated as:
1) % rate of interest
2) The date from which it is calculated (i.e. the date of the cause of action)
3) The date to which it is calculated (i.e. date of issue)
4) The total amount of interest claimed at the date of the calculation
5) The daily rate of interest

Daily rate = (Amount Claimed x Rate of Interest %) Divided by 365

Example wording:

The Claimant claims interest on damages awarded pursuant to [s35A of the Senior Courts Act at an annual rate of 8%] above the base rate from and including the [DATE OF BREACH] until the date of the commencement of this action ([X DAYS]).

The interest due to the date of issue amounts to [(X Days x Daily Rate) Daily Rate = [Damages x (Interest Rate/100)]/365] and is continuing until judgment or earlier payment at a daily rate of [Daily Rate]”.

Question 19

Particulars of claim - breach of contract

What is a summary of relief?

Answer 19

Remedies are summarised towards the end of the particulars of claim

Question 20

Particulars of claim - breach of contract

What kind of documents do you need to attach?

Answer 20

Important documents only
attach important documents ONLY
* Paragraph 13.3 PD16 a party may attach a copy of any document which he considers is necessary to his claim or defence, as the case may be (including any expert’s report to be filed in accordance with Part 35)’
* Expert reports: may only be attached if the court has already given permission to rely on that expert

Question 21

Do you need to reference the law in a particulars of claim?

Answer 21

Referencing the law
* A party is entitled to refer to the law in a statement of case
* However, there is generally no need to do so
* The law should be stated if the parties / court would otherwise ‘be left to spectualte upon the relevance in law of a purely factual / narrative’

Question 22

Why is it very important to include ‘interest claimed’?

Answer 22

The court will not award interest unless it is specifically claimed.

Question 23

What is the structure for particulars of claim for tort (negligence)?

Answer 23

1. Parties of the claim and their status
2. Factual chronology e.g. the event/accident:
   When?
   What happened?
3. Relevant duty of care and why defendant owed it to claimant
4. Breach of duty
5. Causation
6. Damages claimed
7. Interest claimed
   Seek interest pursuant to
   * High Court Claim (s35A Senior Courts Act 1981)
   * County Court Claim (s69 County Courts Act 1984)

The court has a general discretion ‘as the court sees fit’ to award interest on damages in any negligence claim in accordance with s35A SCA 1981 in respect of High Court Claims and County Court Claims.
8. The Statement of truth

Question 24

What two other things should be in the Particulars in a tort case?

Answer 24

1. Details of injury, with medical records
2. Schedule of past and future loss

Question 25

What must a claimant do to claim interest on damages?

Breach of contract

Answer 25

1. State the basis for the claim, i.e., contract, statute
2. State the % interest rate if the claim is for a specified sum

Question 26

In a tort claim, how does the court calculate damages claimed?

Answer 26

Specified claims
* Nature and losses the claimant suffered as a result of the alleged breach.
* This should be broken down where possible so that the court can see exactly how the claimant has calculated the overall damages claimed

Unspecified claims
* The claimant should indicate the value bracket for the damages they are seeking (less than £10,000 but not more than £25,000) or more than £25,000.
* Alternatively, inform the court that they do not know the value of the claim they are making.

Question 27

How is interest claimed in tort claims?

Answer 27

Statutory basis of interest claimed is set at out by the claimant in the particulars of claim

Rate decided by the court - at the court’s discretion under either
* Section 35A Supreme Courts 1981 (High court claims)
* Section s69 (County Courts Act)

Question 28

What the purpose of the defence?

Answer 28

• To allow the defendant to indicate to the court what their position is in relation to each of the allegations which have been made against them.
• With the intention of narrowing down the issues between the parties and ensuring that only matters that are actually in dispute are borught to the court

Question 29

How should the defendant respond to the particulars of claim?

Answer 29

Defendant can respond in the following ways:

1) Admit the allegation
2) Do not admit to the allegation and require proof ot the claimant as to its truth (non-admission)
3) Deny the allegation

Need to respond to each of the numbered paragraphs in the particulars of claim, setting out their position in relation to each numbered paragraph.

Examples:
Admit allegation - Paragraph 1 is admitted
Deny allegation - must explain their reasons for the denial, set ot their own version of events and explain how that differs from that of the claimant.
Neither admit or deny the allegation - if it is outside of the defendant’s knowledge, he will not be able to admit or deny it. There is no obligation on the defendant to acquire the knowledge

Non-admission - where the defendant neither admits, nor denies an allegation. A defendant will make a non-admission where the have no knowledge about the facts or allegations that have been made against them in a particular paragraph of the particulars of claim.

Question 30

What is the structure and contents of the defence?

Answer 30

1) Defence will follow the structure that is set out in the particulars of claim where possible therefore in chronological order where possible
2) Setting out reasons for denial and explaining version of events

The defence should also include
* Claim number (which was allocated to the claim when it was issued)
* The parties to the dispute
* The location of the court to which the claim has been allocated
* A statement of truth signed by the defendant, their legal advisor or where applicable their litigation friend.

Question 31

Defence claim

In a defence claim, what happens if you do not deal with every allegation?

Answer 31

Important to deal with EVERY allegation, if you do not deal with an allegation you will be taken to have admitted/accepted it (CPR 16.5(5)

Question 32

Defence case

When does the claimant need to prove the allegation?

Answer 32

1. Non admission from defendant
2. Denial

Question 33

Defence case

If a defendant wishes to defend a claim, on whom must they serve the defence?

Answer 33

Every other party to the claim

Question 34

Defence case

What are the three ways in which a defendant can respond to each of the paragraphs in the particulars?

Answer 34

1. Admit
2. Deny
3. Non-admission by requesting further information

Question 35

Defence case

What occurs when defendant admits a paragraph, and what is the consequence of failing to respond?

Answer 35

The paragraph is no longer in dispute and the claimant does not have to prove it.

Failure to respond means a paragraph is deemed admitted

Question 36

Defence case

What must a defendant do if they deny a paragraph?

Answer 36

State reasons for doing so, and set out an alternate version of events

Question 37

Defence case

When may a defendant neither admit nor deny a paragraph?

Answer 37

When the facts alleged in the paragraph are outside the defendant’s knowledge

Question 38

Defence case

What happens when the defendant admits damages but denies liability?

Answer 38

They are admitting a damages sum, but it will only be payable if the court finds the claim is proved.

Question 39

Defence case

What is set off, and what type of claims is it most common in?

Answer 39

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 in debt claims.

Question 40

Defence case

What is a reply is it mandatory, and when will it typically be used?

Answer 40

A reply is optional response sent by the claimant to defendant, usually only if something has been raised in the defence which requires a response

Question 41

Defence case

Can the reply be used to rectify mistakes or omissions from the Particulars of Claim?

Answer 41

No. It can only be used to deal with points raised in the defence, which were not covered by the Particulars

Question 42

Defence

Who has the burden of proof in respect of the limitation period?

Answer 42

After the defendant includes details of the relevant limitation period, the burden of proof shifts to the claimant to show that the claim is not time-barred.

Question 43

Part 20

What is a Part 20 claim?

Answer 43

• Additional claim that is brought by the defendant to proceedings after they have been served with the claim form and particulars of claim.
• New cause of action
• Burden of proof for the counterclaim is on the defendant as it would be had they issued the counterclaim as a separate standalone claim.

Most commonly a counter-claim which is a claim made by the defendant against a claimant, but considered part of the same overall proceedings

Question 44

Part 20

What are the four types of claims available to a defendant under Part 20?

Answer 44

1. Counterclaim (20.4)
2. Claim against another person (additional claim) (20.5)
3. Claim seeking contribution or indemnity (20.6)
4. Other additional claims (20.7)

Question 45

Part 20

When will the defendant not require court permission to file a counterclaim, and when will they need court permission?

Answer 45

Does not need court permission
* If counterclaim is filed with defence

Requires court permission
* If filed at any other time

Question 46

What are the 3 features of a counterclaim against a party other than the claimant (20.5)?

Answer 46

1. New party will be called a third party
2. Application can be made without notice, unless directed otherwise
3. Particulars of the new claim must be contained in or served with the claim (no option for them to follow as with an initial claim)

Question 47

Part 20

What is the purpose of a Part 20 counterclaim?

Answer 47

• Allow defendant to bring a cause of action against the claimant for losses that they have allegedly suffered
• This needs to be a claim in its own right and so must be more than a denial of the claim
• Can be based around the same facts as initial claim or entirely different

Question 48

Part 20

What is the rules relating to drafting of a counterclaim?

Answer 48

Same as the particulars of claim.

Question 49

Part 20

What is an additional Part 20 claim?

Answer 49

• A claim made by a defendant for a contribution or indemnity or some sort of other remedy against a person whether or not they are already a party
• E.g. when a defendant wishes to pass the blame to a third party, either in whole or in party or a contribution towards any damages they have to pay to the claimant

Question 50

Part 20

What is a claim of indemnity?

Answer 50

• May arise where there is a contractual relationship between a defendant and a third party
• Latter is obliged by the terms of a contract to indemnify the defendant if they are found liable for the claim

Question 51

Part 20

What is a claim for contribution?

Share the blame and that the 3rd party it responsible for the harm suffered by the claimant

Answer 51

There are joint wrong-doers and the defendant argues that the third party is responsible for the harm the claimant has suffered by the claimant

E.g. Toya claims damages from Lisa as a result of a road traffic collision. Lisa alleges
that another driver, Jaspar, was partly to blame for the accident. She will claim a contribution from Jaspar towards any damages that she is ordered to pay to the claimant.

Question 52

Part 20

What is an additional claim against a non-party?

Answer 52

The defendant may make an additional claim against someone not currently party to the proceedings without the court’s permission provided this is done either before or at the same time as they file the defence.

Farzani is suing Leycester Motors Ltd (LML) because the new car that she purchased
from the company has patches of rust underneath the vehicle. LML bring in Fenland Storage Limited as an additional party as they have evidence that the company stored the car outside before delivering it, instead of in a warehouse as they were contracted to do

Question 53

Part 20

What are the 2 categories of Part 20 claims?

Answer 53

1) Counterclaims
2) Additional claims

Question 54

PART 20

Is the court’s permission required for a defendant’s counterclaim?

Answer 54

No. if it is filed with the defence, the court’s permission is not required.

Question 55

Part 20

Is the court’s permission required for an additional claim for a contribution or indemnity from another party?

Answer 55

• If the person is already a party to the proceedings, the court’s permission is not required to add them provided the notice is filed and served with the defence.
• Otherwise, the court’s permission is required.

Question 56

Part 20

How does the defendant obtain the court’s permission if the third party is not currently a party to the proceedings?

Answer 56

1. Defendant must issue a Part 20 claim form and serve it on the third party, together with the particulars of the additional claim, statement of case which have been served with the main claim
2. If the additional claim is issued before or at the same time the defence is filed court permission is not required
3. Alternatively, court permission is required

Question 57

Part 20

What if the claimant decides to dispute a Part 20 counterclaim? What are the time requirements?

Answer 57

• Must file a defence within 14 days
• Unless 28 days has been agreed with the defendant
• If they fail to do so - defendant may enter judgement in default on the counterclaim

Question 58

Can you amend a statement of case?

Answer 58

Part 17 of the CPR lists ways in which you can amend a statement of case

1) Needs to be done prior to the expiry of the limitation period

2) After filing but before service – amendments can be made at any time
After filing and service – Only with a) written consent of all the parties or b) the permission of the court

Question 59

How does the claimant obtain permission from the court to amend a claim?

Answer 59

1) Claimant should file a copy of the statement of case with the proposed amendments together with an application notice
2) Court will decide whether or not to grant the application and it takes into account the overriding objective 1) dealing with the case justly and at proportionate cost.

Question 60

If an application is made to add a party to the case before the limitation period has expired, what are the two considerations the court will give, either of which is enough?

Answer 60

1. It is desirable to add the new party so that the court can resolve all matters in dispute or
2. 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

Question 61

What is required to add or substitute a party after the limitation period has expired?

Answer 61

1. Relevant limitation period must have been live when proceedings were started and
2. The addition or substitution is necessary because:
   * Original defendant was named by mistake or
   * Claim cannot be maintained without joining the substitute party or
   * Original party has died or subject to bankruptcy and so liability passes to new party
   **3. Overriding objective ** - burden is on the claimant to show that discretion should be exercised in its favour.

Where addition is not necessary, the court has no discretion, and must refuse the change.

Question 62

Past the limitation period, when would the addition or substitution of a party be necessary, and this permissible?

Answer 62

(a) Mistakenly named party on claim form
(b) Claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(c) the original party has died or become bankrupt so liability has passed to the new party.

Question 63

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?

Answer 63

1. File a defence if already a party
2. File an acknowledgement/and or defence if not already a party

Question 64

Part 18

What are Part 18 requested used for?

Answer 64

Made to request information to clarify opponents position in relation to the claim.

• request must be reasonably necessary and proportionate.
• Confined to relevant matter.
• May serve to assist in narrowing issues in dispute.

Question 65

Part 18

What steps must a party take when making part 18 request?

Answer 65

1. Make voluntary request
2. Apply to court if no response is obtained or party object

Question 66

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?

Answer 66

No hearing: Party has not responded at all
Hearing: all other situations

Question 67

Part 18

What are the 3 grounds for objecting to a request for information?

Answer 67

1. Irrelevant
2. Unable to provide information / clarification
3. Insufficient time to reply
4. Disproportionately expensive to reply
5. Privilege

Question 68

What is a required for a request for information to be relevant?

Answer 68

It must relate to matters which are disputed by the parties

Question 69

For personal injury claims, what must the defendant include in their defence?

Answer 69

Must state whether the Defendant agrees with the medical report served with the Particulars of Claim.

Question 70

For late amendments, what principles will the court consider when deciding whether to grant permission?

Answer 70

Swain Mason
* court should be less ready to allow amendment if it does not result from late disclosure/evidence.
* heavy onus is on applicant to justify its own position
* applicant must be ready to go - satisfy element of proper pleading

Party may be penalised by way of costs

Question 71

What is the key test whether determining whether to allow an amendment to statements of case that changes the substance of the claim?

Answer 71

1) Overriding objective - balancing interests of parties

and

2) Show some prospect of success - based on new version of facts

Question 72

What are three exceptions to the general rule that amendments to add additional causes of action will not be allowed post-limitation?

Answer 72

1) Personal injury claims - where satisfied it would be equitable
2) New cause of action is original set-off claim or counter-claim
3) Claim arises out of same facts or substantially same as those in issue

Question 73

What is the test when determining whether a part was named by mistake where a party seeks to add/substitute a party?

Answer 73

Amendment may be allowed if the identity of the intended party is clear from a description (in a statement of case)
* Mistake as to the name rather than identity, and ‘but for mistake’ the new party would have been named

Sardinis Solcis

Question 74

Can a party amend or withdraw an admission?

Answer 74

Only where the court thinks it would be just to allow it, or other party agrees.

Question 75

Where a claimant wishes to add a cause of action after serving proceedings, how must they proceed?

Answer 75

Addition can be with the defendant’s consent or with the court’s permission (CPR 17.1(2)).

Question 76

Where a contract fails to specify a rate of interest payable on breach, does the claimant have any entitlement to statutory interest, and if so when does it start running?

Answer 76

Yes - relates to late payment of commercial debts
* Interest is due starting on day after the debt falls due (i.e. agreed payment day)