Legal Drafting - DR Flashcards
1
Q
What should SOC not contain
A
Evidence
2
Q
How many allegations per paragraph in SOC
A
one
3
Q
Which order should facts and matters alleged be in within SOC
A
Chronological (as far as reasonably possible)
4
Q
How to deal with points in SOC
A
One by one, to allow a point by point response
5
Q
What else should be stated in SOC
A
Anything which, if not stated, might take another party by surprise
6
Q
Should SOC paragraphs be numbered
A
Yes
7
Q
How should a party give reasons in SOC
A
State allegation first and then list the reasons one by one in separate numbered paragraphs
8
Q
How should numbers incl. dates be referred to in SOC
A
Figures
9
Q
Can headings, abbreviations and definitions be used in SOCs
A
Yes, where they assist
10
Q
Should SOC pages be numbered
A
Yes
11
Q
Who should sign SOC
A
In the name of the firm that prepared it
12
Q
Case heading of SOC (except app notice or CF)
A
13
Q
What 6 things should case heading of SOC identify (except app notice or CF)
A
- Whether claim is in High Court, County Court Money Claims Centre (for money only claims), or the appropriate County Court
- If claim is in High Court, which division
- If claim is in High Court, whether it is in the Central Office (London) or in a District Registry
- The claim number: allocated by court when it issues CF
- Full names of parties
- Type of document: in capital letters (can also be between tram lines)
14
Q
HC divisions
A
- King’s Bench Division
- Family Division
- Chancery Division
15
Q
Statement of truth
A
[I believe] [The claimant/defendant believes] that the facts stated in this [name of the document] 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.
Signed: [Signature] [PRINT NAME]
[Position: for example director of the claimant/defendant company OR partner in the firm of [name of firm]]
This statement of truth was signed on [date].
16
Q
Content of POC
A
- Concise statement of facts on which C relies
- If based upon written agreement, a copy of the contract / documents constituting the agreement should be attached
- If based upon oral agreement, set out contractual words used and state by whom, to whom, when and where they were spoken
- Claim for interest if C seeks interest
- Dated
17
Q
Ending of POC
A
- If drafted by legal rep as member / employee of a firm, should be signed in name of firm, not individual
Must be verified by s.o.t
* “I believe/ 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”
Signed: [Signature]
[PRINT NAME]
[Position: for example director of the claimant company OR partner in the firm of [name of firm]]
This statement of truth was signed on [date].
* Must include the claimant’s address for service
18
Q
How is POC for a specified (debt) claim different
A
Slightly simplified form:
* Sets out parties to contract, their status, formation of contract & existence of relevant express / implied terms in same way as for unspecified
* C will assert that they performed their side of the contract e.g. providing goods & if D has paid part of the amount due (part performance) this should be stated too - C should also state when they submitted their invoice(s)
* C should then set out D’s breach: failure to pay (does NOT need to set out particulars of breach nor consequences nor claim for loss / damage) - simply state that it claims the sum due from D
19
Q
Negligence claim POC structure
A
- Concise details of action e.g. accident
- Specify duty owed by D
- How duty was breached
- Causation
- Loss and seek interest
20
Q
Wording to claim interest in unspecified claim - POC
A
In respect of damages awarded the Claimant is entitled to interest pursuant to [s.35A of the Senior Courts Act 1981/ s.69 of the County Courts Act 1984] at such rates and for such period as the Court thinks just.
- NB: can add contract rate of interest in square brackets instead where relevant
21
Q
What must D state when they deny an allegation
A
- Reasons for denying, and
- Own version of events if different to C’s
22
Q
Content of defence
A
- Where POC make allegations on point-by-point basis, answer each and every point
- Where POC uses definitions, continue with these
- Must state a) which of the allegations are denied; b) which require proof (lack of knowledge); and c) which are admitted
- Must state for each allegation denied a) reasons, and b) different version of events if different
- Give details of expiry of any relevant limitation period relied on
- Details of any contributory negligence or failure by C to mitigate its loss
23
Q
How might the defence use the same defined terms in POC
A
“The definitions used in the Particulars of Claim are adopted.”
24
Q
General denial paragraph near end of defence
A
“In the circumstances, it is denied that the Claimant is entitled to the amount claimed or any amount”
25
Defence ending
1. Signed in name of solicitor's firm
2. Verified by statement of truth
26
Defence - statement of truth
I believe/ the Defendant believes that the facts stated in this Defence 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.
Signed: [PRINT NAME]
[Position: for example director of the defendant company OR partner in the firm of [name of firm]]
This statement of truth was signed on [date].
27
Top righthand corner of witness statement
* On whose behalf made (Claimant / Defendant)
* Initials and surname of witness
* Number
* Exhibit/s (these are usually defined by giving the witness’s initials and then a number, such as ‘AEB 1’)
* Date
28
WS heading
* Name of court, claim no. and names of parties
* The title: WITNESS STATEMENT
29
WS opening paragraph
Full name, address, occupation or description of witness and state if a party or an employee of a party
Also state that they are duly authorised to make statement on behalf if doing so
30
Content of witness statement
1. Must, if practicable, be in **witness' own words**
2. Should be expressed **in first person**
3. Equivalent of the oral evidence they would give
4. Must indicate which of the statements in it are **made from the witness' own knowledge** and which are **based on information or belief**, naming the source if appropriate
5. **Process by which the statement was prepared** must be included, e.g. face to face or over the telephone with party's solicitor
6. Should normally follow **chronological sequence of events**
7. Any docs attached are **formally exhibited** (e.g. 'AEB 1')
31
Ending of WS
Witness must verify OWN witness statement by providing a s.o.t.
Solicitor CANNOT do on their behalf!
32
WS statement of truth
STATEMENT OF TRUTH
I believe that the facts stated in this witness statement 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.
Signed:
[PRINTED NAME OF WITNESS]
This statement of truth was signed on [date].
33
Case analysis
1. Facts of case
2. Cause of action?
3. Legal and factual elements?
4. Evidence
5. Relevant jurisdiction and governing law
6. Limitation period
7. Remedies
8. Is it viable to sue D?
9. Conclude
34
Measure of damages re contract
put the injured party in the position it would have been in **had the contract been properly performed**
35
Measure of damages re tort
place the claimant in the position it would have been in **had the tort not been committed**
36
Contract - Letter of claim structure
1. Introductory para (we are instructed to act on behalf of...)
2. Pre-action formality (letter issued in accordance with e.g. PDPCP)
3. Background (contract summary, relevant terms, breach etc.)
4. Breach of contract
5. Damage and loss (as a consequence of your breach...)
6. Relevant docs (we enclose a copy of the...)
7. ADR (out client is open to...)
8. Next steps
9. Enc. (under signature e.g. contract, protocol)
37
If PDPCP applies, what should be included in letter of claim at the end
We consider that this letter complies with the “Practice Direction – Pre-action Conduct and Protocols” which sets out the steps the court would normally expect parties to take before commencing proceedings in relation to this matter. The documents we have enclosed are the key documents relevant to the issues in dispute. You can access a copy of this Practice Direction at https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#6.1 and a copy is enclosed.
38
Sentence to add re time for response in letter of claim
Please respond within the next 14 days. If no response is received in that time period, Preece intends to commence proceedings without further notice.
39
Tort - Letter of claim structure
1. Introductory para
2. Insurers para (confirm identity etc.)
3. Clear summary of facts
4. Liability
5. Injuries
6. Hospital details
7. Loss of earnings
8. Other financial losses
9. Details of insurer
40
Letter of response - contract
1. Failure to comply with pre-action protocol
2. Preliminary position
3. Next steps
41
Letter of response - tort
1. Parties - introductory para
2. Liability
3. Limitation
4. Documents
5. Next steps
6. ADR
42
How to refer to partnership on SOC
(1) [partner name]
(2) [partner name]
OR
[partnership name] (A Firm)
43
How to refer to trust on SOC
Trustees of the [eg a Pension scheme] OR Markus Severn in his capacity as trustee of [name of trust]
44
How to refer to deceased person on SOC
[where probate / letters of administration have been granted] Jane Wilson (as administratrix / executrix of John Wilson); [Where probate or letters of administration have not been granted] The personal representatives of John Wilson deceased.
45
Individual vs company statement of truth
Individual:
* “I believe that the facts stated in this claim form are true…”
**Company**:
* “The defendant believes that the facts stated in this defence are true. I am duly authorised by the defendant to sign this statement....”
46
POC structure - breach of contract
1. Establish all elements of contract (parties, consideration, intention)
2. Define relevant contractual terms
3. Explain breaches of those terms
4. Establish causation to loss & damage
5. State damages
6. Claim interest
47
POC structure - tort claim
1. Establish duty owed by D to C
2. State what that duty required
3. Explain how duty was breached
4. Establish causation
5. State damages
6. Claim interest
48
Two relevant statutes re claiming interest
(i) s35A Senior Courts Act 1981 if in the High Court
(ii) S69 County Courts Act 1984 if in the County Court
49
How to plead interest generally for unspecified claim
“interest at such a rate and for such a period as the court sees fit under s35A SCA 1981”
50
How to plead interest for any specified part (Can do in addition to pleading generally for unspecified part)
For any specified part, state:
* (i) **total** interest (specifying the sum upon which interest is claimed, at which percentage and between which dates) AND
* (ii) the **daily rate thereafter** (“under s35A SCA 1981 at the rate of 8% per annum from a to b, the date of issue of the claim form, amounting to £x and continuing at the daily rate of £y until judgement or sooner payment.”)
* (iii) Note that as set out in point 2 you only need to cite the SCA where there is no contract term - otherwise state “under the contract dated []”.
51
How to calculate daily rate
Sum on which interest is claimed x Percentage rate of interest / 365
52
How to calculate total amount of interest
Daily rate of interest x Number of days claim has run for
53
POC - parties clause
1. The Claimant is and was at all material times…
2. The Defendant is and was at all material times…
54
How to refer to written contract in POC
* By a contract dated [date] the Claimant entered into a contract with the Defendant for…
* The contract is evidenced in writing by a [name of docs] (“Contract”).
55
How to refer to oral contract in POC
For an oral contract state that “the Claimant entered into an oral contract over the telephone for… This agreement made reference to the terms agreed in discussions on [dates].”
56
How to refer to terms in POC
* The following were express terms of the Contract:
* In circumstances where you acted in the course of your business in the sale of [good]/provision of [service] it was an implied term of the Contract pursuant to [s X of SGA/SGSA] that the [good/service] be of [satisfactory quality etc].
57
How to specify a breach in POC
"In breach of the express term of the contract referred to in paragraph 4 above, the Defendant did not pay."
58
Contract - particulars of breach example
It is evident from the above events that the [good(s)] was not:
* 11.1 “in good, new condition”;
* 11.2 fit for all purposes for which [the good] is commonly supplied;
* 11.3 free from minor defects; or
* 11.4 durable.
59
How to claim causation in contract POC
* It follows that the Defendant is in breach of the express/implied term of the Contract that…
* As a consequence of the Defendant’s breach of contract, the Claimant has suffered the losses referred to in paragraphs X and Y above.
60
Prayer clause - POC
AND THE CLAIMANT CLAIMS:
(1) Damages in the sum of… as set out under paragraph [ ] above
(2) Interest pursuant to section 69 of the County Courts Act 1969 as aforesaid/pursuant to paragraph [...] above.
(3) Costs.
61
Particulars of negligence example
The Defendant drove negligently in that he:
(a) drove at excessive speed;
(b) lost control of the Car;
(c) swerved repeatedly on and off the driveway;
(d) failed to apply the Car’s brakes sufficiently or at all;
(e) failed to steer, manage, control or stop the Car so as to avoid the collision.
Owing to the Defendant’s negligence, the Claimants have suffered loss and damage.
62
How to structure reply to defence
Go through each paragraph and state what is denied + an explanation.
* Paragraph … of the Defence and Counterclaim is denied and the Defendant avers…
* In respect of paragraphs … of the Defence and Counterclaim it is averred that…
* Paragraphs … of the Defence and Counterclaim are denied for the reasons set out in paragraphs…
63
Request for further info (part 18) structure
* Be headed with the name of the court and the title and number of the claim.
* State in its heading that it is a Part 18 Request, identify the first and second parties and state the date on which it is made.
* Set out each request for information or clarification in a separate numbered paragraph.
* Where a request relates to a document, identify the document and, if relevant the paragraph or words to which it relates.
* State the date by which the first party expects a response.
64
Response to request for further info
1. Must be in writing, dated and signed
2. Verified by statement of truth
3. Unless the responses are written onto the request document, the response must:
* Be headed with the name of the court and the title and number of the claim
* In its heading identify itself as a response to the request
* Repeat the text of each separate paragraph of the request and set out under each paragraph the response to it
* Refer to and have attached to it a copy of any document which forms part of the response not already in the possession of the first party
65
How should WS rfer to documents
I refer to a copy of my email to Peter Jensen of the Claimant dated 13 May 2022 marked “GB1”.
66
When is affidavit required
When required by court / rule e.g. search order or freezing order
67
Jurat example on affidavit
Sworn at [full address]
On [Date]
Before me:
Signed............
68
Requirements for part 36 offer
1. Must be in writing;
2. Make it clear that it is made pursuant to Part 36
3. Specify a minimum “relevant period” of 21 days (except where the offer is made less than 21 days before the start of a trial);
4. Indicate if is to settle all or merely a discrete part of the claim; and
5. Specify whether it takes into account any counterclaim
69
How are Calderbank offers different to part 36
Costs consequences are entirely at discretion of court
70
What 3 things should case summary contain
1. Chronology of claim
2. Factual issued agreed and in dispute
3. Nature of evidence needed to decide them
71
Matters to include on draft order for specific disclosure
* 'The Claimant / Defendant shall disclose the following documents...'
* Deadline for conducting search
* Deadline for serving documents on firm, a disclosure statement and supplemental list of docs located as a result, together with a copy of docs
* Which party pays for costs of application
72
First line of affidavit
'I, Cynthia Harbin, of [address], state on oath...'
73
How to refer to exhibits in affidavits
'There is now shown to me marked 'CH2' the detailed schedule of these faults'
74
General denial to add to end of defence
In the circumstances, the Claimant is not entitled to the relief sought or any relief.
75
What must be included in WS for interim app only (not trial)
Confirm what is being applied for
- e.g. 'I make this statement in support of the Claimant’s application for summary judgment.'
Final paragraph confirming remedy the party seeks
- e.g. ‘I submit to the court for the reasons set out above that the Defendant is liable for the sum claimed and that the Claimant’s application should be granted and judgment given in favour of the Claimant for the full sum due together with interest on that sum’.
76
What should be added to WS if disputing defence
'I cannot understand the basis on which the Defendant is defending the claim'
77
Which court to put on POC if in County Court and money claim
County Court Money Claims Centre
78
Where to start claim in County Court and money claim for up to £100k and against max 2Ds
Money Claim Online
*CF served in normal way, but D can respond online*
79
Where to start claim for bulk claims in CC
County Court Business Centre
80
Where are money claims issued by in CC
Civil National Business Centre, and then transferred to local County Court hearing centre following issue
81
Where are non-money claims issued in CC
At any County Court hearing centre by sending in N1 and fee
82
What else could be added after 'at all material times' re company in POC
That the party was acting by its e.g. Managing Director, [ ] at all material times
83
What to write after setting out written agreement in POC
"The Agreement is attached to these Particulars of Claim in Schedule 1"
*Don't forget to then actually add Schedule 1 at the end*
84
If oral variations made to contract, how should this be reflected in POC
Could have a section with the oral variations following the terms and above the breach
85
When pleading interest in POC and provided with daily rate in question, when should the period claimed *start from*
The day after the breach, e.g. if payment was due on 5 July 2024, from 6 July 2024
86
What **must** be included after statement of truth verifying POC
Claimant's address for service
87
What should be written instead of particulars of breach in negligence claim POC
Particulars of negligence
88
What **must** be included for POC re PI
* Claimant's D.O.B.
* Details of injury
* Details of past / future losses (in a schedule if many heads of claim)
89
What 3 things must be set out in interim payment form
1. Amount requested & what it will be used for
2. Amount likely to be awarded at final judgment
3. Reasons for believing grounds are satisfied
90
Introductory para of WS (after stating name & occupation)
I make this witness statement from matters within my own knowledge and belief
save where the contrary appears. Where I refer to matters of which I have been told by
others, those matters are true to the best of my knowledge and the source of my
information appears.
