Statements of Case

Question 1

What is a statement of case?

Answer 1

The formal documents in which the parties concisely set out their cases.

Served between parties and filed at court.

Usually these will be the claim form and particulars of claim, and any defence filed by D.

Question 2

Who signs a statement of case where it is prepared by a firm acting for the party?

Answer 2

The solicitor signs this in the name of the firm.

Question 3

Explain the ethical considerations regarding a statement of case.

Answer 3

Solicitor under duty not to mislead the court and therefore should only include statements and ascertains that are properly arguable.

Question 4

Explain the course of action if a client tells solicitor there is a mistake, error or inaccuracy on the statement of case which has already been submitted.

Answer 4

Solicitor must insist this is amended and if the client refuses they just cease to act.

Solicitor must also not inform the court/ D of the reason they are ceasing to act as they still owe the duty of confidentiality.

No longer representing for professional reasons is acceptable reason to give to court.

Question 5

Which CPR rule governs the contents of particulars of claim and what does it provide?

Answer 5

CPR r 16.4(1) provides particulars of claim must include:

1) Concise statement of facts on which C relies (ie it must outline all of the facts giving rise to the dispute, demonstrating required elements of the cause of action on which the claim is based); and

2) If C seeks interest, a statement outlining the details of this.

Question 6

List and explain what the particulars of claim should include in relation to breach of contract claims.

Answer 6

1) Status of the Parties - required in certain circumstances. Eg establishing D’s business details if relying on the Sale of Goods Act 1979 to prove D sold the goods during the course of their business.

2) Chronological Events - Includes pre-contractual matters if they assist the claim (eg a request for sample which was later not complied with). Must then details the substance of the matter including the legal elements which underpin the matter.

3) Existence of the Contract - must be proved a contract exists setting out the date, type (written or oral), parties, subject matter and the consideration. If a written contract is the basis of the claim, this must be attached to particulars of claim when served (7.3 Practice Direction 16). If based on oral agreement, contractual words used and who said them to whom must be specified (para 7.4 Practice direction 16).

4) Terms - details of the express terms must be included in the particulars of claim. If any implied terms are being relied on these should be included too. This shows which parts of the contract have been performed.

5) Breach Alleged - details of which terms were breached and how. Eg failure to pay for goods, late delivery etc. The breach is first detailed generally and then specific details of the breach should be contained under a heading ‘Particulars of Breach’ and should provide the exact itemised details of what exactly D did which constitutes a breach.

6) Factual Consequences - C expresses what happened as a result of D’s alleged breach. Eg supplied poor quality goods which as a result could not be sold onto consumers.

7) Damage and Loss Alleged - loss must be alleged generally, but then itemised so it is clear to D exactly what is being claimed and how this is calculated.

8) Interest - court may award interest on damages or repayment of a debt if claimed.

Question 7

Explain the three way interest may be awarded on damages or repayment of a debt.

Answer 7

1) Where contract provides for interest explicitly;

2) Under the Late Payment of Commercial Debts (Interest) Act 1998 - gives statutory right to interest on commercial debts paid late. Only concerned with commercial debts, and does not apply to unspecified damages or specific amounts (debts) owed by consumers. The relevant rate for this act is 8% pa above Bank of England base rate;

3) Court has discretion to award interest in all other cases, given to them by statutes.

Question 8

What is the rule for interest on specified claims?

Answer 8

Interest must be precisely calculated as a lump sum for amount accrued from breach of contract up to the date of issue of the proceedings, plus daily rate.

Question 9

A) What does rule 16.5 state the defendant must include for each allegation they are accused of when submitted their defence?

B) In relation to the answer for a, what further information should D include (where necessary)?

Answer 9

A) Whether that allegation is:
1) Denied;
2) Not Admitted;
3) Admitted.

B) Where D denies an allegation they must state:
a) reason for doing so; and
b) their own version of events if different from that given by claimant.

Question 9

The contents of the particulars of claim is largely the same of negligence and breach of contract claims. Give the two key differences.

Answer 9

1) The particulars of claim will instead reflect the principles of negligence (eg duty, breach of that duty, causation and loss);

2) The court has general discretion to award interest on damages in any negligence claim in accordance with the relevant statutes. Interest is normally awarded from when the loss was sustained.

Question 10

Explain what a non-admission response from the defendant is.

Answer 10

This is made where D has no knowledge of the particular matter alleged. Where non- admission or denial is given by D in response to alleged breaches, the claimant must then prove these with evidence.

This needs to be provided for each factual situation set out by the claimant (eg if D is alleged to be at fault for a car crash, they may admit that a crash occurred and that the date of the crash is correct, but then go on to deny they were at fault for the crash) the effect of this limits the contentious aspects of the claim.

Question 11

What is the effect of D missing an allegation and not responding to it?

Answer 11

It will be deemed accepted.

Crucial D responds to each allegation/ statement from C (however minor) with either an admission, non-admission or denial.

Question 11

List what must be included in the defence.

Answer 11

1) name of the court;
2) claim number (unique number allocated by there court on issue of proceedings);
3) parties to the claim;
4) title (DEFENCE);
5) date and signature of solicitors in the name of the firm;
6) statement of truth; and
7) details of who is to be served and where.

Question 12

Explain the procedure for defending a claim on the basis the limitation has expired (ie what are D’s actions here).

Answer 12

D must provide details of this within the defence (ie when it began and expired) they must also state whether the limitation period is running according to a contractual provision, or the Limitation Act 1980.

Burden of proof is then on the claimant to show the claim is within the limitation period.

Question 13

Give the two scenarios where the burden of proof for proving the limitation period has expired will be on the defendant.

Answer 13

1) claims for contributory negligence;

2) claims that C failed to mitigate loss.

Question 14

Which part of the CPR governs additional claims (such as counter claims)?

Answer 14

CPR Part 20.

Question 15

Explain when a counter claim will be relevant and used by D.

Answer 15

Where they have a claim they could have initiated against the claimant separately.

A counter claim is relevant if D has suffered loss attributable to C.

If D only has a good reason for not paying the monies owed but did not incur loss, only a defence should be filed.

Question 16

Explain the structure of the defence document where D its also including a counter claim.

Answer 16

• Title to the action should be ‘Defence and Counterclaim’ as opposed to ‘Defence’.
• Document is then subdivided, with defence outlined at the beginning and the counter claim following on from this immediately after.
• The counter claim need not refer back to the statements of case (ie where claimant has set out all of the terms etc) but needs to refer back to the defence.
• The remainder of the counterclaim will then set out the allegations of loss resulting from C’s breach.

Question 17

Is permission required from the court in order to file a counter claim?

Answer 17

No.

However permission from the court is required if a defence has already been filed.

Question 17

What is an additional claim?

Answer 17

An additional claim is not a counter claim. It is a claim made by D for a contribution/ indemnity or some other remedy against any person whether or not they are already a party. Commonly, this will be used where D is passing the blame over to a third party.

Question 18

Define an indemnity for the purposes of an additional claim.

Answer 18

Claim for an indemnity may arise where there is contractual relationship between D and a third party, in which the third party is obliged by the terms of the breached contract to indemnify the defendant if found liable for the claim.

Question 19

Define a claim for contribution made by D as an additional claim.

Answer 19

Where D is alleging another third party is a joint wrongdoer, and D argues that third party is responsible for the harm C has suffered.

Question 20

Explain how amendments can be made before the expiry of the limitation period.

Answer 20

Where the amendment is after filing but before service, amendments can be made at any time.

Where the amendment is made after filing and service, amendments can only be made with:
a) the permission of the court; or
b) the written consent of all of the parties.

Question 21

If applying to the court for permission to amend the statement of case within the limitation period, what documents must be sent to the court?

Answer 21

A copy of the statement of case with the proposed amendments together with an application notice.

Question 22

Can amendments be made to a statement of case after the limitation period has expired and if so are there any conditions which need to be met in order to be able to do this?

Answer 22

Permission from the court is required.

As such the court may allow an amendment in one of the following circumstances:

a) To add or substitute a new claim, if this arises out of the same or substantially there same facts as an existing claim;
b) To correct a (genuine) mistake as to the name of a party; or
c) To alter the capacity in which a party claims.

Question 23

What is CPR r 18?

Answer 23

This rule provides that at any time, either the court or the parties may request further information and if successful the party will be ordered to:

a) clarify any matter that is in dispute; or
b) give additional information in relation to any such matter.

Question 24

What is the procedure for requesting further information?

Answer 24

a) If either party requires further information, they must first serve written request on the other party, allowing reasonable time for response.

b) A request should be concise and strictly confined to matters reasonably necessary and proportionate, to enable the applicant to prepare their own case or to understand the case they have to answer.

c) Requests must be made as far as possible in a single comprehensive document (not piecemeal). If brief this may be by letter; if not request should be made in separate document which must be sent to the other party.

d) Request must be headed with name of the court, title number and number of the claim, as well as identifying it is a part 18 request. the requests should be set out in separate numbered paragraphs, and state the date for a response.

Question 25

How does a response to the request for further information need to be formulated?

Answer 25

Response must be in writing, dated and signed by the party or their solicitor and set out the same info as request and give details of the response.

It should also be:
a) served on all parties;
b) filed with the court; and
c) verified with a statement of truth.

Question 26

Explain potential action where a request for further information is not responded to.

Answer 26

Application to the court may be made under part 18 CPR . Court will grant an order if satisfied that the request is confined to matters reasonably necessary and proportionate to enable the applicant to prepare their case or understand case against them.

Question 27

Describe the difference between non-admission and denial were putting forward a defence on the particulars of claim.

Answer 27

Non-admission is where you do not know whether it is true or not.

Denial is where you know the allegation to be false. Reasons must be given as to why this is the case.