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Dispute Resolution > Statements of case > Flashcards

Statements of case Flashcards

1
Q

What needs to be in the case heading?

A

Court and/or division
Number of proceedings
Full name of each party
Party’s status (C or D)

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2
Q

What are the rules applicable to all statements of case?

A

Numbered paragraphs
Page numbers consecutively
Margin references to court docs
Name of drafter
Statement of truth

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3
Q

What are the contents of the claim form re parties?

A

Names and addresses
Representative capacity: what capacity is

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4
Q

What are the contents of the claim form re address?

A

Address for service
C indicate where resides/carries on business if different (16 PD 2.2)

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5
Q

What are the contents of the claim form re claim details?

A

Concise statement of nature
Remedy sought (not necessary to expressly include claim for costs CPR 16.2)

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6
Q

What should a claim form say when there is an unspecified value?

A

“C expects to recover <10k” “between 10k-25k” “>25k” OR
“I cannot say how much I expect to recover”
Court can give judgment for any amount
PI: pain/suffering/loss of amenity is/is not more than £1000

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7
Q

What is the high court jurisdiction endorsement?

A
  • C expects to recover over £100k
  • Other enactment provides commencement only in HC or
  • PI over £50k or
  • Specialist HC and which list
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8
Q

What needs to be in particulars of claim generally?

A

All material facts/evidence that if proved C will be entitled to remedy. ‘tell the story’
Duty, breach, causation, loss
Not law, evidence, arguments.

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9
Q

What is included in PoC for personal injury?

A

DOB, injuries, schedule of losses, expert medical practitioner

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10
Q

What is included in PoC for land?

A

identify land and whether residential

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11
Q

What is included in PoC for written agreements?

A

attached with any general conditions incorporated

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12
Q

What is included in PoC for oral agreements?

A

words spoken, by whom, to whom, when and where

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13
Q

What is included in PoC for agreements by conduct?

A

Conduct relied on, by whom, when and where

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14
Q

What is the legal basis for claiming interest in PoC?

A

Set out in contract or statutory right (SCA or CCA)
Calculate exact amount or claiming interest generally

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15
Q

What is included where claiming an exact calculation for interest?

A
  • Applicable percentage rate
  • Dates from/to which interest is being claimed
  • Total amount claimed up to issue of N1
  • Daily rate of interest thereafter
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16
Q

when can you claim for interest generally?

A
  • Loss of goodwill/damage to reputation
  • Loss of future earnings/profits
  • Remoteness, foreseeability and/or mitigation
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17
Q

What should the structure of PoC contain?

A

Introduce parties
Relevant duty and background facts
Breach
Causation
L:oss

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18
Q

What does non-compliance with statements of case rules lead to?

A

may require formal amendment.
Time wasting
Costs consequences
tactical disadvantage

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19
Q

What is the consequence for a false statement of truth?

A

Contempt of court – sanctions, fines, imprisonment

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20
Q

How should a statement of truth be written for an individual?

A

I believe

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21
Q

How should a statement of truth be written for a company?

A

The claimant/defendant believes

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22
Q

What should be included in a statement of truth?

A

‘I understand that proceedings for contempt of court may be brought…’

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23
Q

How should parties be introduced in the claim form?

A

Individual – Jon Smith
Sole trader – Jon Smith (trading as Smith)
Partnership individuals – (1) N (2) N
Partners in name of P – N (a firm)
Company – N (Limited)
LLP – N LLP
Trust – Trustees of the N / N in his capacity as trustee of N
Dec’d with Pr – N (as executor/ad of N)
Dec’d without Pr – the PRs of N deceased

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24
Q

What needs to be included in the claim form?

A

Parties
Address
Claim details
Value
potentially particulars*

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25
Q

What specifics need to be in the claim form?

A

Aggravated damages, exemplary damages and/or provisional damages

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26
Q

How do you do hybrid claims for interest?

A

work out for specified and make general claim for unspecified or say they total an unspecified amount

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27
Q

What are the rules on statutory interest claims?

A
  • Generally court discretion
  • PI over £200 damages = some interest awarded unless special reasons
  • Debt – If D pays during proceedings, some interest must be awarded
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28
Q

What comes at the end of the particulars?

A

Interest
Prayer – Summary of remedies sought
Firm/barrister sign off
Statement of truth

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29
Q

What options does the defendant have to reply?

A
  1. Admit allegation
  2. Deny allegation
  3. Require proof of allegation
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30
Q

What are the requirements for admitting the allegation?

A

C doesn’t have to bring further evidence
Admit anything not disputed/non-controversial to narrow issues
Costs consequences if don’t

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31
Q

What are the requirements for denying the allegation?

A

Facts which if they had occurred, D would have knowledge
Must give reasons – state version of events
Bare denial – not acceptable
C will have to prove allegation

32
Q

What are the requirements for requiring proof of the allegation?

A

Unable to admit/deny allegation because D has no knowledge
What direct knowledge of facts does D have?

33
Q

What are the consequences for failing to deal with an allegation?

A
  • Omits: Deemed to admit (unless set out in own case)
  • Money claim: amount not admitted unless D admits
34
Q

Defence - What should be said about limitation?

A

Defence to claim. Not a bar to claim.
o D must state date limitation expired

35
Q

Defence - What should be said about disputing value?

A

State why and estimated value

36
Q

Defence - What should be said about personal injury?

A

whether defendant agrees, disputes, no knowledge of matters in schedule of past/future expense/loss
any medical

37
Q

Defence - What should be said about mitigation/reduction of damages?

A

Must be stated

38
Q

Defence - What should be said about set off?

A

D claims C owes money. Set out in defence.

39
Q

What other things should be included in the defence?

A

Set out any defence/issues not included in claim eg fraud
* Human rights: Included in defence.
* Counterclaim: Defence and counterclaim form one document

40
Q

What is the structure of the defence?

A

Start with case heading, end with statement of truth.

41
Q

What is a reply?

A
  • Optional SoC served by C.
  • Purpose – allege facts in answer to defence not included in claim.
  • When: Filed with directions questionnaire (14 days notice deadline)
  • Last SoC, permission from court required if needing to file more.
42
Q

What happens if a statement of case is unclear?

A
  • Apply to strike it out
  • Apply for summary judgement
  • Ask for clarification
  • CPR 18 – request further information
    o Confined to matters reasonably necessary and proportionate to enable requesting party to prepare own case/understand opponents case
    o Make a request before applying to court
43
Q

What are the Counterclaims and other possible statements of case?

A
  • D – counterclaim
  • C – defence to counterclaim
  • C – additional SoC responding to defence (reply)
44
Q

What are the rules for a counterclaim by D?

A

separate claim to main claim, normally made same time D files defence.
After defence filed = permission of the court is needed (CPR 20.4(2))
Usually same proceedings, could file separate but = inconvenient.
* duty, breach, causation and loss against C
* Doesn’t need to relate to action against D but parties must be suing/being sued in same capacity as main claim.
* Court can order struck out to be heard separately (CPR 3.1(2)(e)).

45
Q

What are the rules for set off in the counterclaim?

A

facts giving rise to CC may also amount to defence in main claim
partial or complete defence to main claim
‘extinguishing’ any claim up to the same amount against the defendant.

46
Q

What is the form of a counterclaim?

A

same time = single document ‘defence and counterclaim’
particulars of claim by another name (same rules)
Court fee payable

47
Q

What is the legal basis for set off?

A
  • Mutual debts: One debt set off against the other
  • Sale of Goods Act: breach of implied terms as to quality and fitness for purpose
  • Defective services: damages for poor service
  • Equitable: Close connection between two transactions that would be manifestly unjust to allow enforcement of one without other.
48
Q

What are the rules for a defence to counterclaim?

A

Can be admitted or defended.
* Time: No requirement for acknowledgement of service. Served within 14 days after counterclaim or judgement in default.
* Form: Usual rules of defence

49
Q

What are the rules for a counterclaim against a third party?

A

Cause of action against C + another (jointly liable with C).
If not already party = need to be joined.
Can arise from different set of facts to main claim.

50
Q

What are the types of additional claims?

A
  • CC by D – C
  • CC by D – C and TP
  • Additional Claim by D – Any person (already party) claiming contribution or indemnity
  • AC by D – Any person (already party) claiming some other remedy
  • AC by D – Any person (not party) claiming contribution/indemnity/other
  • AC by party which itself has been joined to main proceedings.
  • NOT claims by original C.
51
Q

What is contribution and when does it arise?

A

right to recover all or part of amount which he is liable to pay.
* Tort, contract, civil liability Act

52
Q

What is indemnity and when does it arise?

A

‘right to recover the whole amount which he is liable to pay.’
* Contract of statutory provision

53
Q

How does D file an additional claim for contribution/indemnity if already acknowledged service or filed defence?

A

file contribution notice with court + serve on other party.

54
Q

When is permission required for a classic counterclaim?

A

NOT REQUIRED = If issued before/same time as defence filed
REQUIRED = any other time

55
Q

When is permission required for a counterclaim against another person?

A

Always

56
Q

When is permission required for a counterclaim for contribution/indemnity against an existing party?

A

NOT REQUIRED = If filed + served same time as/with defence
OR if Additional Claim made against party added to main claim within 28 days after filed defence.

REQUIRED = any other time

57
Q

When is permission required for other counterclaims?

A

NOT REQUIRED = If Additional Claim issued before/same time as defence filed
REQUIRED = any other time

58
Q

What is the process for applying for permission from court for additional claims?

A

Application Notice accompanied by draft order and evidence including:
* Details of stage of main claim
* Details of AC
* Summary of relevant facts
* Explanation of delay
* Name and address of proposed party

59
Q

What is the structure and form of a classic counterclaim?

A

particulars of counterclaim. Defence + CC = one document, CC following defence. Filed and served together

60
Q

What is the structure and form of a counterclaim agaisnt another?

A

Serve apt notice. No set form.
o No permission = file and serve with defence
o Permission = court gives directions when notice should be served

61
Q

What is the structure and form for other additional claims?

A

Issue N211 claim form (similar to N1, more details)
o No permission = Served within 14 days of being issued.
o Permission = court direction when should be served

62
Q

What is the structure and form for additional claims where the party is not joined to proceedings?

A

Party not already part of proceedings becomes a party if AC served on them. Must be accompanied by-
o Response pack and
o Copy of every SoC and other docs as court directs
o Copy of AC form must be served on all existing parties

63
Q

What are the default judgement rules for additional claims?

A
  • If party doesn’t file defence to CC = D can apply for DJ
  • If existing party doesn’t file defence to cont/indemnity = D CAN’T apply
  • Person not already party served N211 doesn’t reply = admits claim and bound by judgement of main claim (not possible to apply for DJ)
64
Q

When can you amend a statement of case including removing, adding or substituting a party

A

at any time before it is served

65
Q

What are the rules for amending statements of case with court permission?

A

File application notice with court and proposed amended SoC.
Hearing or (parties consent) without hearing on written submissions
Court usually gives direction for consequential amendments + service
Amended SoC filed with 14 days of grant ordering amendment unless court orders otherwise. Copy of SoC and order served on all.
Needs to say amended by order of [Mr Justice] dated

66
Q

What is the main test when Adding, removing or substituting parties

A

The amendment is desirable

67
Q

What are the rules for permission when changing parties?

A

Refusal to be added as a C = can be added as a D.
Court permission required to add/remove/substitute unless CF not served.

68
Q

What are the rules for amending where the limiation period has expired?

A

Adding new cause of action/party = deemed separate action.
New party = takes effect same date as amended claim form served.
New claims = Limitation Act determines. General rule - not allowed.

69
Q

When can a new cause of action be added?

A
  • Court directs limitation doesn’t apply for Personal Injury
  • Original set off or counter claim
  • Arises from same facts or substantially same facts
70
Q

When can a new party be added?

A
  • Limitation period current when started
  • Necessary:-
    o Mistake
    o Claim cannot be carried on
    o OP died/bankrupt
71
Q

What is a new cause of action?

A

New duty/obligation = CoA
New facts = not normally CoA

72
Q

What is the format of amending statements of case?

A
  • No need to show original text unless court orders
  • Amendments shown by: coloured amendments or numerical code
    o Colour code – order for successive amendments = red, green, violet, yellow
  • Amended SoC should include apt endorsement and verified by statement of truth.
73
Q

What is the test for allowing a party to be changed?

A
  • Has D been identified in SoC by reference to description more or less specific to the particular case?
  • YES = fundamental, may be permitted.
  • NO = Cannot permit
74
Q

What are the rules for making a request for further information?

A

Seek from other party on voluntary basis first, request to court if not.
Serve written request on other party stating date for response.
Confined to those reasonably necessary and proportionate to enable party to seek clarification/information to prepare its own case/understand the case.

75
Q

What are the rules for responding to a request for further information?

A

Written, dated and signed by party or legal reps, inc statement of truth.
Response sent to other party and filed at court.
Objecting – inform other party within timeframe.
Disproportionate expense – Reasons explained

76
Q

What are the rules for making a request for further information to court?

A

Any matter whether or not in SoC. Where other party not responded/object
Made as interim application.
No response in 14 days, can be made without notice to opponent/hearing
Court order – respond within time specified by court, statement of truth.
Court can direct that information given is not used for any other purpose.

Dispute Resolution (16 decks)

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