Legal Drafting (General) Flashcards
What should a clause be limited to?
A clause should be limited to a specific topic. Do not mix the subject matters. Deal with different topics under separate clauses.
When in the KBD High Court, what is the clause drafting rule?
Each paragraph or sub paragraph should contain only one allegation
KBD High Court requires paragraphs and sub paragraphs to be consecutively numbered.
What words are used to indicate an imperative obligation?
Shall or Must
What terms are used to indicate an option?
May
What is the effect if Clause A is ‘Subject to Clause B’ ?
Clause B overrides Clause A
What is the effect if Clause A is ‘Notwithstanding Clause B’ ?
Clause A overrides Clause B
What is the effect if Clause A ‘Notwithstanding Any Other Provision’?
Clause A overrides all other clauses.
What is the effect if Clause A is ‘without prejudice to Clause B’ ?
Nothing in Clause A impairs Bs effectiveness.
What steps must be taken if the contract specifies a party must use ‘Best Endeavours’?
Party must take every step it reasonably can to fulfil the obligation.
What steps must be taken if the contract specifies a party must use ‘Reasonable Endeavours’?
It is sufficient if the party takes only some and not all reasonable steps if there are multiple steps that could be taken. This is less onerous than ‘best endeverous’
What voice is preferred for drafting?
Provide an example?
Active Voice
The ‘doer’ appears in front of the verb.
For example, ‘The Buyer shall pay for Goods’
Who drafts the contract in a property conveyance?
Seller’s Solicitor
Who drafts the first draft of a lease and licence?
Landlords Solicitor
Who usually drafts the first draft contract in corporate matters?
Usual for the buyer’s solicitor to produce the first draft of the sale and purchase agreements.
When negotiating your draft, how do you re-insert a clause deleted by the other party following their review?
Use the word ‘stet’ by the deletion, this marks the words to be reinstated (often by way of a dotted line beneath them).
How does drafting a statement of case differ from an opinion piece?
Unlike an opinion you do not….
- Deal with both sides of an issue; nor
- Include any facts which your client does not rely upon
If your client is under 18, how do you deal with the overall heading?
CHILD’S NAME
(a child, by her litigation friend X)
What appears on the overall heading when suing a partnership (other than an LLP) in name of partnership?
Use full name of partnership with the words
(A FIRM)
What appears on the overall heading when suing partners as individual?
Use names of each partners and their title.
What is the overview structure of pleading breach of contract?
- Parties and Background
- Existence of Contract
- Terms
- Knowledge of the Defendant
- Performance
- Breach
- Causation, loss and damage
- Interest
- Remedies Sought
For a defence, what do you respnd to?
Is it soley a response?
- Respond to each paragraph of the Particulars of Claim which contain material allegations
- You do not need to respond to (i) claims of interest; or (ii) the prayer containing remedies sought.
- In addition to responding, you communicate your client’s positive case, setting out their version of the story.
When naming a non-party entitty (e.g. company) in the particulars of claim, how should it be done?
First time referred to, include full title with abbreviation in brackets. Thereafter, use the specified abbreviation.
When naming a person other than a party in the particulars of claim, how should it be done?
Their name should be used.
The name should never be abbreviated and formal title should always be used.
The first reference should include the full name (e.g Mr Hamza Shafir) Thereafter, reference should be made using title and surname (e.g. Mr Shafir).
What is liquidated damages and how are these dealt with in the particulars of claim?
They can be calculated if you have all the necessary information. **Specify the amount. **
What are unliquidated damages and how are these dealt with in the particulars of claim?
They Cannot be ascertained because it depends on a judge (e.g. PSLA, Future Losses).
Whilst it cannot be specified, it may be estimated.
If the claim is for unliquidated damages, does interest still need to be claimed in the particulars?
Yes but you do not need to give detail of the way it will be calculated (i.e generalised claim for interest).
An example of a generalised claim: “Further, the Claimant claims interest under section 35A of the Senior Courts Act 1981 on the amount found to be due to the Claimant for such a sum and for such a period as the court thinks fit.”
If the claim is for liquidated damages, does interest need to be claimed in the particulars? If so, how?
Yes. State the…
- Percentage rate
- Date from which calculated
- Date to which interest is calculated
- Total amount claimed to date
- Daily rate at which interest accrues after that date.
Any figures and dates you do not know should be left blank with square brackets around them.
What is the ‘prayer’ in the particulars of claim>
The prayer summarises the remedies sought.
This is the final paragraph and starts with a capitalised ‘AND’, has no primary paragraph number, but has bracketed (1), (2), (3) for each remedy sought.
Who can sign the statement of truth?
Counsel should never sign or date it.
Solicitors may if there is insufficient time for the client to do so. Ideally, it is signed by the client.
