Drafting - Dispute Resolution

Question 1

What would you do if drafting a Particulars of Claim in a breach of contract case?

Answer 1

1. Explain who the parties are
2. Identify the contract and the relevant terms
3. Explain the breach(es), including stating the particulars of breach + the consequences,
4. Explain what loss the claimant has suffered
5. State the basis on which the claimant is claiming interest on any damages awarded
6. Include the statement of truth

Question 2

What would you do if drafting a Particulars of Claim in a negligence claim?

Answer 2

1. Explain who the parties are
2. Identify the relevant facts establishing a duty of care
3. Explain the breach(es), including stating the particulars of breach and the consequence(s)
4. Explain what loss the claimant has suffered
5. State the basis on which the claimant is claiming interest on any damages awarded,
6. Include the statement of truth

Question 3

If no specific protocol applies, what is required of a letter of claim?

Answer 3

The letter should include:
1. the basis on which the claim is made,
2. a summary of the facts,
3. what the claimant wants from the defendant, and if money, how the amount is calculated
4. include a settlement proposal

Question 4

If no specific protocol applies, what is required of a reply to a letter of claim?

Answer 4

The reply should include:
1. confirmation as to whether the claim is accepted, and
2. if it is not accepted, the reasons why, together with,
3. an explanation as to which facts and parts of the claim are disputed, and
4. whether the defendant is making a counterclaim, as well as providing details of any counterclaim

Question 5

How would you mention settlement in a letter of claim if you have not received instructions to make a specific offer?

Answer 5

You would normally say something like ‘our client is mindful of the need to follow the overriding objective and has instructed us to set up a without prejudice meeting to discuss the claim’

Question 6

What is the Statement of Truth?

Answer 6

[I believe OR The Claimant believes] that the facts stated in these Particulars of Claim are true.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

[I am duly authorised by the Claimant to sign this Statement.]
Full name […….]
[Name of Claimant’s legal representative].

Question 7

When should the defendant respond to a letter of claim under the Practice Direction?

Answer 7

Within a reasonable time.

14 days in a straightforward case.
No more than 3 months in a very complex one.

Question 8

How should you structure your letter of claim?

Answer 8

1. Dear Sirs
2. Introduction - who you represent + why you are sending letter
3. Summary of the facts
4. Legal and factual basis of the claim
5. Compensation sought
6. Settlement
7. Next steps
8. Yours faithfully
9. Signed in the name of the firm

Question 9

What must a defendant state in their defence?

Answer 9

Which of the allegations in the Particulars of Claim he denies.

Which of the allegations he is unable to admit or deny, but which he requires the claimant to prove, and

Which allegations he admits.

Question 10

What must a defendant do if he denies an allegation in the defence?

Answer 10

1. He must state his reasons for doing so, and
2. If he intends to put forward a different version of events from that given by the claimant, he must state his own version.

Question 11

What is assumed of a defendant’s defence if the claim includes a money claim?

Answer 11

A defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

Question 12

What must a defendant do in their defence if they dispute the claimant’s statement of value?

Answer 12

1. State why he disputes it, and
2. If he is able, give his own statement of the value of claim.

Question 13

How should you begin a defence?

Answer 13

“Save where otherwise indicated all references to numbered paragraphs in this defence are to the Particulars of Claim”

Question 14

How should an admission start in a defence?

Answer 14

“Paragraph(s) [xx] is/are admitted”

Question 15

How should a non-admission in a defence start?

Answer 15

“Paragraph(s) is/are not admitted, or
Paragraph(s) is/are neither admitted nor denied”

It is then optional to state: “and the claimant is put to strict proof thereof.”

Question 16

How should a defence begin a denial?

Answer 16

“Paragraph(s) [xx] is/are denied… It is averred that or It is the defendant’s case that…”

Question 17

How must a Tomlin/consent order be headed?

Answer 17

Must be headed ‘Tomlin Order’, not simply ‘consent order’.

Question 18

Particulars of Claim - what are the bases on which the Claimant can claim interest on damages?

Answer 18

1. Agreed contract rate, or
2. Pursuant to the Court’s jurisdiction to award interest in accordance with:
   i. section 35A of the Senior Courts Act 1981, or
   ii. section 69 of the County Courts Act 1984.