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BTC - Civil, Litigation & Evidence > Statements Of Case > Flashcards

Statements Of Case Flashcards

1
Q

Which part of the CPR is responsible for obtaining further information?

A

CPR 18

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2
Q

Examples of where a party may wish to request further information

A
  • obtain admissions
  • obtain information about weaknesses in a party’s case
  • obtain information about facts which the opponent needs for their case
  • acquire details of what a witness may say before exchange of documents
  • clarification of a party’s case
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3
Q

How should a party make a request to obtain further information (18 PD 1)?

A

Should go to the opponent first and request it voluntarily, which is requested in writing, stating a date in response. Request should be concise and confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case.
Where this does not work then they will need to make an application to the court.
18 PD 1 - contains the instructions of how this is done

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4
Q

How does a party respond to a request for further information (18 PD 2)?

A

The response must be written, dated and signed by the party or its legal representative and include a statement of truth.
Response must be sent to the other party AND FILED AT COURT.

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5
Q

What must a party do if it refuses to respond to a request for further information? (18 PD 4)

A

If the party objects, then they must state in writing why they object, they must do this within the timeframe set from the original request. It must be officially explained why the request is rejected, i.e. it would be disproportionate and unnecessary etc.

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6
Q

Can the court order the party to clarify further information? (CPR 18.1)

A

Yes, the court can order a party to clarify any matter which is in dispute in the proceedings or give additional information in relation to any such matter where or not the matter is contained or referred to in a statement of case.

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7
Q

When can you apply to the court to request further information? (18 PD 1.1)

A

When the party who the request is sent to has not responded or they have rejected the request.

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8
Q

How do you apply to the court to request further information? (18 PD 5)

A

You need to make an interim application under CPR 23. If party has not responded after 14 days, the application can be made without notice to the opponent and the court can deal with it without a hearing.

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9
Q

After there has been a court order to request information, how must the party respond?

A

They must respond within the timeframe set by the court. This must be filed and served on all the parties and the court within this timeframe. Statement of truth is also a requirement

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10
Q

Restriction on the use of further information requests (CPR 18.2)

A

The court can direct that further information given by a party to another party either voluntarily or pursuant to an order in CPR 18.1 to be used for any other purpose other than the proceedings they are in.

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11
Q

Which civil procedure rules apply in relation to a defence?

A

CPR 16.5-16.6

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12
Q

Which civil procedure rules apply in relation to a reply?

A

CPR 15.8 & 15.9

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13
Q

What is the purpose of a defence

A

Used for the defendant to set out their case, in response to the particulars of claim.
React to every point of the allegation
State in full details of the defendants case.
They must deal with each individual particulars of claim

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14
Q

How do you structure a defence?

A

Follow the structure of the POC, with adding any additional defences at the bottom

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15
Q

What personal details need to be included in a defence statement?

A

Defendants address for service within the jurisdiction, unless a AOC has already been filed
Must also indicate where a defendant resides or carries on business if the claim form does not contain any such information

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16
Q

What can the defendant do in relation to each allegation within the POC?

A

Admit
Deny
Require proof
(Can be a mix of all)

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17
Q

What must be contained if the defendant admits the allegation?

A

If the defendants admits, no further evidence has to be brought forward from the C
Party should admit all facts which are not in dispute, or not controversial.

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18
Q

What consequences are there for not admitting something which you should have done?

A

There can be costs consequences. CPR 44.2(5)(b)

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19
Q

What should the defendant include to deny the allegations in the defence?

A

These are disputes in any facts which have occurred within the defendants knowledge
When the defendant denies an allegation, they must give reasons.
If a different version of events occurred, the defendants must put these (CPR 16.5(2))
It is not acceptable to make a bare denial

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20
Q

What should the defendant do if they require proof?

A

The defendant must therefore require the C to further prove the allegation to them.

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21
Q

What happens if you fail to deal with an allegation?

A
  • If the defendant omits to deal with any allegation made by the claimant, the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation, in which case it will be deemed not to admit it, ie to require the claimant to prove it (CPR 16.5(3) and (5)).
  • In a money claim, however, it will always be understood that the amount claimed is not admitted unless the defendant specifically admits it (CPR 16.5(4)). It is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.
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22
Q

What specifics regarding limitation need to be included in the defence?

A

Limitation: this is a defence to a claim - it is not (perhaps surprisingly) a bar to the claim being brought. If the defence of limitation is being raised, the defendant must state the date on which the limitation period is deemed to have expired (16 PD 13.1).

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23
Q

The defence: What if a defendant disputes the statement of value?

A

Disputing the statement of value: a defendant may dispute the claimant’s valuation of the claim. If so, the defendant must state why it disputes it, and what it estimates the value to be (CPR 16.5(6)).

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24
Q

What specifics must be included in defending a PI claim in regards to loss?

A

In personal injury claims, the defendant must state whether it agrees, disputes or has no knowledge of the matters in the schedule of past and future expenses and losses, and any medical report included with the particulars, giving reasons and its own counter-schedule and (if relied upon) medical evidence (16 PD 12).

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25
Q

What may the defence include regarding mitigation or reduction of damages?

A

Set-off
Other defences
Any human rights arguments
Counterclaims

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26
Q

What is a set-off?

A

The defendant may claim he is owed money by the claimant, and may wish to rely on this as part of his defence to the claimant’s claim. The defendant is effectively saying ‘I don’t owe you X, because you owe me X, and the two cancel each other out’. If the defendant is able to and wishes to rely on a defence of set-off, it must be set out in the defence.

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27
Q

What is a reply?

A

A reply is an optional statement of case served by the claimant.

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28
Q

What is the purpose of a reply?

A

Allege facts in answer to the defence which were not included in the claim (CPR 15.8) – the contents will therefore be factual allegations which answer ‘new’ points raised in the defence. There is no particular structure for a Reply.

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29
Q

When do you file a reply?

A

Replies are not filed in every case but, if there is one, it should be filed with the directions questionnaire (the directions questionnaire is a case management document which the court directs should be filed after a claim is defended. Parties are given at least 14 days’ notice of the deadline for doing this)(15 PD 3.2A).

This time limit is different in some specialist proceedings (eg Commercial Court claims) so it is necessary to check the relevant rules and court guides if dealing with a specialist claim.

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30
Q

What is it meant by a ‘last statement of case’?

A

The reply should be the last statement of case in a claim and permission of the court is needed to file any statement of case after the reply (CPR 15.9).

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31
Q

what must be contained on a claim form?

A
  • concise statements of facts
  • the remedy C seeks
  • statement of value for money claims
  • interest when there is a specified sum
  • such other matters required by a practice direction
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32
Q

for claims against the crown, what must be contained in a claim form as well as the usual contents?

A
  • which government department and officers of the crown concerned
  • brief details of the circumstances
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33
Q

if the claim form does not contain the POC, what must it state?

A

that the POC is to follow. this must be served 14 days after service of the clam form

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34
Q

if the claimant is claiming in a representative capacity or the defendant is being sued in a representative capacity, what must the claim form state?

A

what that capacity is.

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35
Q

can the court grant a remedy not specified in the claim form?

A

yes, the court may do this.

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36
Q

where the claimant is making a claim for money, what must the claim form state?

A

the amount of money claimed
that the claimant expects to recover:
- not more than £10,000;
- more than £10,000 but not more than £25,000;
- more than £25,000; or
that the claimant cannot say how much is likely to be recovered.

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37
Q

for personal injury cases, except from some road traffic cases, and the claimant is claiming of pain, suffering and loss of amenity, they must state whether their expectant losses are —

A

either:
- not more than £1,500; or
- more than £1,500

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38
Q

where the claimant is seeking repairs from a landlord, they must state whether the estimated cost for the repairs and/or the value of any other clam for damages is —

A

either:
- not more than £1,000; or
- more than £1,000

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39
Q

for a claim in the high court, the claim form must:

A
  • state that C is to recover more than £100,000
  • state any enactment which allows the claim to be in the high court
  • state that the value is £50,000 or more for personal injury cases
  • state that the claim is for the specialist high court list and which list it belongs to.
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40
Q

when calculating how much the claimant is to recover for the purposes of the claim form, the claimant must disregard the following:

A
  • awards of interests and costs
  • court makes a finding of contributory negligence
  • defendant makes a counterclaim and claims set-off
  • Defendant is liable under section 6 of the social security (Recovery of benefits) act 1997
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41
Q

what must a POC contain?

A
  • concise statements of facts which C relies on
  • if C is claiming interest, the calculation of that interest and what basis
  • off C is claiming aggravated, exemplary or provisional damages, a statement and the grounds of that effect.
  • such other matters set out in a practice direction
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42
Q

if the claimant is claiming interest, what must be included in the POC?

A

stet whether they are doing so:
- under the terms of a contract
- under an enactment and if so which one
- on some other basis and what that basis is

if the claim. is for a certain amount:
- the percentage rate at which interest is claimed
- the date from which it is claimed
- the date on which it is calculated, no later than the date on the claim form
- total amount of interest
- daily rate at which interest accrues

43
Q

what address should the claim form contain?

A

the address of where the claimant resides or carries on the business depending on what basis the clamant is claiming, i.e. in the name of the individual or the business itself.

44
Q

if the statement of case exceeds 25 pages (not including a schedule) then what must be contained?

A

an appropriate short summary must be filed ands served.

45
Q

what happens if the claim form is issued without a full address?

A

it will be retained by the court and won’t be served until the full address is supplied. Or the court has dispensed with the requirement to do so.

46
Q

for the heading of a claim form, what must be included for the names of the parties when the party is an individual?

A

for an individual, the full name and title by which the person is known

47
Q

for the heading of a claim form, what must be included for the names of the parties when the party is carrying on a business in a name other than their own name?

A

for an individual carrying on business other than in their own name, the full name of the individual, the title by which they are known, and the full trading name (for example, Jane Smith “trading as” or “T/as” “JS Autos”);

48
Q

for the heading of a claim form, what must be included for the names of the parties in the case of a partnership?

A

for a partnership (other than a limited liability partnership (LLP))—
(a)where partners are sued in the name of the partnership, the full name by which the partnership is known, together with the words “(a Firm)”; or
(b)where partners are sued as individuals, the full name of each partner and the title by which each is known

49
Q

for the heading of a claim form, what must be included for the names of the parties when the party is a limited company?

A

in the case of a company or limited liability partnership registered in England and Wales, the full registered name, including suffix (plc, Limited, LLP, etc), if any

50
Q

for the heading of a claim form, what must be included for the names of the parties when the party is any other company or corporation?

A

for any other company or corporation, the full name by which it is known, including suffix where appropriate.

51
Q

if it is practicable, where should the POC be set out?

A

in the claim form

52
Q

POC not included in the claim form must be verified by what?

A

statement of truth

53
Q

POC not included in the claim form must be verified by what?

A

statement of truth

54
Q

POC served separately to the claim form must contain —

A

(1)the name of the court in which the claim is proceeding;
(2)the claim number;
(3)the title of the proceedings; and
(4)the claimant’s address for service.

55
Q

for personal injury claims, the POC must include —

A
  • C’s date of birth; and
  • brief details of C’s injuries
56
Q

what must be attached to a POC in personal injury cases?

A

a schedule of past/future expenses and losses claimed.

57
Q

where C is relying on evidence by a medical practitioner, what should be attached to the POC in a personal injury claim?

A

a report from the medical practitioner about the personal injuries C alleges in their claim.

58
Q

in provisional damages claim, what must C state in the POC?

A

(1)that they are seeking an award of provisional damages under either section 32A of the Senior Courts Act 1981 or section 51 of the County Courts Act 1984;
(2)that there is a chance that at some future time the claimant will develop some serious disease or suffer some serious deterioration in their physical or mental condition; and
(3)specify the disease or type of deterioration in respect of which an application may be made at a future date.

59
Q

Where a claim is made for an injunction or declaration relating to any land or the possession, occupation, use or enjoyment of any land the particulars of claim must—

A
  • state whether or not the injunction or declaration relates to residential premises, and
  • identify the land (using a plan where necessary).
60
Q

Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain…

A

… a statement showing the value of the goods.

61
Q

Where a claim is based upon a written agreement—

A
  • a copy (or copies) of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing; and
  • any general conditions of sale incorporated in the contract should also be attached (but where the documents are bulky it is acceptable to attach or serve only the relevant parts of the contract or documents).
62
Q

where the claim is based on an oral agreement, the POC must contain….

A

…the contractual words used and state by whom, to whom, when and where they were spoken.

63
Q

Where a claim is based upon an agreement by conduct, the particulars of claim must specify…

A

…the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

64
Q

In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain…

A

… a statement that the action is not one to which section 141 of the Consumer Credit Act 1974 applies.

65
Q

A claimant who wishes to rely on evidence under section 11 or 12 of the Civil Evidence Act 1968 must contain:

A

in the particulars of claim a statement to that effect and give the following details—
- the type of conviction, finding or adjudication and its date;
- the court or Court-Martial which made the conviction, finding or adjudication; and
- the issue in the claim to which it relates.

66
Q

The claimant must specifically set out the following matters in the particulars of claim where they wish to rely on them in support of the claim—

A

(1)any allegation of fraud;
(2)the fact of any illegality;
(3)details of any misrepresentation;
(4)details of all breaches of trust;
(5)notice or knowledge of a fact;
(6)details of unsoundness of mind or undue influence;
(7)details of wilful default; and
(8)any facts relating to a claim for mitigation expenditure.

67
Q

Where a claim is for a sum of money expressed in a foreign currency it must state—

A

(1)that the claim is for payment in a specified foreign currency,
(2)why it is for payment in that currency,
(3)the Sterling equivalent of the sum at the date of the claim, and
(4)the source of the exchange rate relied on to calculate the Sterling equivalent.

68
Q

Where new matters have come to light a party may seek the court’s permission to….

A

…amend their statement of case.

this also prevents inconsistency as a subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim.

69
Q

In clinical negligence claims, what should be inserted at the top of every statement of case?

A

the words “clinical negligence”

70
Q

when should D file an AOS?

A
  • they are unable to file a defence in the time specified in CPR 15.4 (14 days after the service of the POC)
  • disputing the court jurisdiction
71
Q

consequences of not filing an AOS?

A

if D fails:
- to file an AOS within 14 days of service of POC; and
- fails to file a defence within the time limit of 14 days of POC

then C may obtain judgment in default

72
Q

the period for filing an AOS is —

A

(a) 14 days after service of the particulars of claim where the defendant is served with a claim form which states that particulars of claim are to follow; and
(b) 14 days after service of the claim form in any other case.

73
Q

if D denies a statement, what must they contain in their defence?

A

(a) they must state their reasons for doing so; and
(b) if they intend to put forward a different version of events from that given by the claimant, they must state their own version.

74
Q

If a defendant fails to deal with an allegation but sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant…

A

…it shall be taken to require that allegation to be proved.

75
Q

Where the claim includes a money claim, the claimant must prove…

A

…any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation.

76
Q

save for any exceptions, a D who fails to deal with any allegations in their defence raised in the POC, shall….

A

…be taken to admit that allegation

77
Q

if the defendant is defending in a representative capacity, they must state…

A

…what that capacity is

78
Q

the defendant must give an address for service if…

A

…they have not filed an AOS.

79
Q

Where a defendant contends that they are entitled to money from the claimant and relies on this as a defence to the whole or part of the claim…

A

…the contention may be included in the defence and set off against the claim, whether or not it is also an additional claim.

80
Q

If a claimant does not file a reply to the defence, the defendant must…

A

…prove the matters raised in the defence.

81
Q

If a claimant files a reply to a defence but fails to deal with a matter raised in the defence, the defendant must…

A

…prove that matter even though it is not dealt with in the reply.

82
Q

the courts power to dispense with statements of case allows the court to make an order that the claim will continue without any other statement of case only when the claim form has —

A
  • been issues in accordance with CPR 7.2; and
  • been served in accordance with CPR 7.5

(issues and served correctly)

83
Q

do the CPRs dealing with defences and replies apply to Part 8 claims?

A

No.

84
Q

a defendant who wishes to defend part or whole of a claim must do what?

A

file a defence

85
Q

what is the consequence for failing to file a defence?

A

judgment in default

86
Q

The general rule is that the period for filing a defence is—

A

(a) 14 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

87
Q

agreement for the extension for filing a defence

A

The defendant and the claimant may agree to extend the period for filing a defence specified in rule 15.4 by up to 28 days.

Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

88
Q

a copy of the defence must…

A

…be served on all the parties

89
Q

when a defendant wants to make a counterclaim, which CPR applies?

A

CPR 20

90
Q

If a claimant files a reply to the defence the claimant must—

A
  • file the reply with a directions questionnaire; and
  • serve the reply on the other parties at the same time as it is filed; and

the reply should form one document with any defence to counterclaim, with the defence to counterclaim following the reply, unless the dates on which they are due to be filed differ from one another.

91
Q

a statement of case may not be filed after the a reply unless….

A

…permission is obtained from the court

92
Q

Where the only claim is for a specified amount of money and the defendant states in his defence that he has paid to the claimant the amount claimed, the court will…

A

…send notice to the claimant requiring the claimant to state in writing whether the claimant wishes the proceedings to continue.

A copy of the claimant’s response must be served on the defendant at the same time as it is filed.

If the claimant fails to respond within 28 days after service of the court’s notice the claim shall be stayed. Any party may apply under Part 23 for the stay to be lifted. The application must include an explanation for the delay in proceeding with or responding to the claim.

93
Q

when will a claim be stayed automatically?

A

(a) at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4;
(b) no defendant has served or filed an admission or filed a defence or counterclaim; and
(c) no party has entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment); and
(d) no defendant has applied to strike out all or part of the claim form or particulars of claim,

94
Q

application to lift automatic stay of proceedings

A

Any party may apply under Part 23 for the stay to be lifted. The application must include an explanation for the delay in proceeding with or responding to the claim.

95
Q

what forms are used for defending a money claim?

A

form N9B for specified amount
form N9D for unspecified amount

these are included int he response pack which is served on the defendant alongside POC

96
Q

where there is a defence and counterclaim, how is this drafted?

A

in one singular document

97
Q

where C is filing a reply and defence to counterclaim, how will this be drafted?

A

in one singular document

98
Q

Where the claim is for personal injuries and the claimant has attached a medical report in respect of the alleged injuries, the defendant should—

A

state in the defence whether the defendant agrees, disputes or neither agrees nor disputes but has no knowledge of, the matters contained in the medical report;

where the defendant disputes any part of the medical report, give in the defence their reasons for doing so and where the defendant has obtained their own medical report, attach it to the defence.

99
Q

Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to the defence a counter-schedule stating—

A
  • which of those items the defendant agrees disputes or neither agrees nor disputes but has no knowledge of; and
  • where any items are disputed, supplying alternative figures where appropriate.
100
Q

can a party refer to a point of law in their statement of case?

A

Yes. only where it is necessary

100
Q

can a party refer to a point of law in their statement of case?

A

Yes. only where it is necessary

101
Q

can a party put the names of witnesses they intend to call in their statements of case?

A

Yes.

102
Q

can a party attach any documents to their statements of case?

A

Yes. it helps with proving the points they plead

BTC - Civil, Litigation & Evidence (18 decks)

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