Statements of Case Flashcards
How should a statement of case be drafted?
In plain English where possible
What must the POC include?
(a) concise statement of facts on which C relies, demonstrating the case;
(b) if there is a claim for interest, a statement of that and the details
How should a POC for a breached contract be structured?
(a) Status of the parties (e.g. a business or a consumer);
(b) Existence of the contract (date, type, subject matter, parties, consideration);
(c) Terms (details of express terms and any implied terms);
(d) Breach alleged and specifically how;
(e) Factual consequences due to the breach;
(f) Damage and loss alleged;
(g) Interest, must be claimed if the party wants it.
How should a POC for negligence be structured?
(a) Status of the parties;
(b) Existence of DOC;
(c) Breach of DOC;
(d) Causation;
(e) Damage
What must C not do in a POC?
Argue the case. It is solely an unbiased view of the facts and how they would fit into the breach alleged.
What is the purpose of the defence?
To either:
deny;
not admit; or
admit
parts of the claim
How should a defence be structured?
It should follow the structure POC and address each line in the defence.
What should be included when the defendant denies part of a claim?
(a) The defendant’s reasons for doing so; and
(b) their version of events if different from that given by D
What happens if a defendant fails to address a point in the POC?
If a point isn’t addressed, it is deemed to be accepted.
When is the burden of proof on the defendant in their defence?
If they claim:
(a) contributory negligence; and
(b) a failure by C to mitigate their loss
When is a counterclaim served?
When D alleges they have their own cause of action against the claimant.
Is permission required from the court to file a counterclaim?
No, but only if the defence hasn’t been filed.
If a defence has been filed, the defendant will require permission to file a counterclaim.
What additional claims can be made against third parties?
(a) Contribution; and
(b) Indemnity
How can an amendment to a statement of case be made before filing and service?
Can be made at any time without permission.
How can an amendment to a statement of case be made after filing and service?
Requires:
(a) written consent of all the parties; or
(b) with the permission of the court
What does the court consider when determining an application to amend a statement of case?
It considers the overriding objective and the injustice to the applicant if the application is refused, and the injustice to the other party if it is accepted.
When would the court allow an amendment to a statement of case after the expiry of the limitation period?
(a) to add or substitute a new claim (arises from the same/substantially the same facts as the existing claim);
(b) to correct a genuine mistake regarding party names;
(c) to alter the capacity in which a party claims.
How can a party request further information?
(1) They ask the opposing party directly, if the other party refuses, then;
(2) They apply to court requesting the information
Why would a party request further information?
To:
(a) clarify any matter in dispute; or
(b) give additional information in relation to any such matter
