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Civil Litigation > Statements Of Case (Topic 7) > Flashcards

Statements Of Case (Topic 7) Flashcards

1
Q

What do the pleading need to set out?

A

Material facts (that a party needs to establish or rebut)

Any point of law on which a party’s case is based
Does not contain evidence but can set out the name of witnesses
May attaché any necessary documents (such as expert reports)

  • Set out what damages are claimed
  • and if any interest is claimed and how calculated
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2
Q

What are pleadings also known as

A

Statement of case

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3
Q

What makes up the statement of case?

All documents must be ….

A 
Claim form 
Particulars of claim (if served separately) 
Defence 
Part 20 claim 
Reply to Defence 
Part 18 Further Information

All documents must be verified by a statement of truth

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4
Q

Does the statement of case need to be verified?

A

Yes always by a statement of truth

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5
Q

When the PofC are included within the CF or are served with the CF in a separate document, what does this trigger?

A

CPR 9.2

D will need to:
A. File/serve an admission,
B. File a defence, or
C. File an acknowledgement of service

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6
Q

What will the acknowledgement of service indicate?

When must an acknowledgement of service be served?

If a D acknowledgements service how long do they have to serve a defence?

A

Whether or not the D will defend the claim

Must be served within 14 days of the service of the Particulars of claim

28 days (if do not serve an acknowledgement then 14 days post PofC)

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7
Q

IF the D fails to file an acknowledgement of service (within 14 days) and does not file a defence, what can the C do?

A

Claimant may obtain default judgement

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8
Q

What must the claim form contain?

(5)+

When the claim is for money what must the C state in relation to the amount claimed?

IN PI claims what must the C also state in relation to money claims?

A
  1. Concise statement of the nature of the claim
  2. Remedy C seeks
  3. When money is claimed, a Statement of value
  4. where C only claim is for a sum of money - contain a statement of the interest accrued on that sum
  5. Anything else set out in PD
    - Address of C and D (including postcode)
———
1. Amount claimed
2. That C expects to recover
A. Not more than £10,000
B. Between £10,001 and £25,000
C. More than £25,000
Or 
3. That C cannot say how much likely to be recovered

———
PI claims: C must state if they expects to recover in relation to PSLA, either not more than £1,000 or more than £1,000

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9
Q

What must the D include in their defence?

How will the court interpret it when a D fails to deal with an allegation made in PofC?

A
  1. Which allegations he denies and why + their version of events
  2. Which allegations he requires C to prove
  3. Which allegations he admits

IF the D has set out in his defence the nature of their case in relation to the issue to which the allegation is related, D will be taken as requiring the allegation to be proven

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10
Q
  1. Can the D and C agree to extending the period for filling a defence?
  2. How will the court know about this?
  3. When served who will the defence be served on?
A
  1. Can agree, but only up to 28 days extension
  2. D mist notify the court in writing

3 = on every other party

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11
Q

If the C chooses to reply to the defence what must they do?

A

File it with a directions Questionnaire and serve on all other parties when they file it

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12
Q

If the claim is only for a specific amount of money (bar costs and interest) and the D defence is that they have already paid the C the amount claimed — What will the court do?

When the C response who must they serve a copy on?

What if C fails to respond?

A

They will send notice to C requiring them to state in writing if they wish proceedings to proceed

Must serve a copy of their reply on the D

If C fails to respond the Claim still be stayed

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13
Q

If it has been 6 months since the period for filing a defence expired and the D has not served a admission or defence and the C has not applies for a default or summary judgement, what will happen to the claim?

A

Claim will be stayed

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14
Q

If a party fails to verify a statement of case, What is the impact of this? What can the court do?

If a witness stamens is not verified with a statement of truth what is the effect of this?

What the courts general power in relation to documents which have not been verified by a statement of truth when they should have been?

A

Impact = part may not rely on it as evidence of any of the matters set out in it
Court may strike it out

WS not verified:
Court may direct that it shall not be admissible evidence

General power:
Court may order a person who has failed to verify to verify the document

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15
Q

Can a legal representative sign a statement for truth on behalf of the party they are representing?

If a party applies for an order for a statement of case to be struck out because it is not verified by a statement of truth, who will bare the cost of this application?

A

Yes

____

General rule is that costs of the application will be paid by the party who has failed verify

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16
Q

If a party verified a statement of case containing a false statement without honest belief in its truth, what is the possible consequence of this?

A

Proceedings for contempt of court may be brought

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17
Q

If the court needs further information or needs clarification concerning a matter what can they do?

What can the court direct in relation to that further information?

A

Court can order a party to clarify or give additional information, whether or not the matter is contained within a statement of case

Court can direct that the further information is not to be used for any purpose except for that of the proceedings in which it is given

18
Q

When may the party amend it?

A

Before filed or served = Any time, no permission needed, not an issue

Filed by not served = Amendment can be made WITHOUT permission

Files and served = Only with the written consent of all the other parties or with the permission of the court

19
Q

What happens if a party amends their statement of case without permission of other parties or the court?

If the court gives permission for an amendment to be made what else may they also order?

A

Any other party can apply for an order from the court disallowing the amendment

______

Likely to also order that the other parties statements of case can be amended in light of the amendment

20
Q
  1. Who will be responsible for the costs arising from any amendment?
  2. What should the party file with the court when making an application to amend?
  3. if permission if granted what must the party do?
  4. Following an amendment does the statement of case need to be re-verified with a statement of truth?
A
  1. The party making/applying for the amendment
  2. Application notice and copy fo the statement of case with the proposed amendments
  3. Within 14 days file the amended version with the court
  4. Only if the substance of the statement of case has been changed
21
Q

When the court thinks that it is desirable for the original text and the amended text to be shown how can they order that the amendments be formatted?

Order fo colours to be used for successive amendments is? 1-4

A

By coloured amendments or by use of a numerical code

  1. Red
  2. Green
  3. Violent
  4. Yellow
22
Q

Can the Court grant a remedy if it is not specified in the claim form?

A

Yes (Avoids the C having to plead every possibly remedy)

23
Q

What names need to be included in the claim form?

  1. For each party …
  2. Individual trading under a name other than their own …
  3. Partnership
  4. A company
A
  1. Full unabbreviated name
  2. Full name of individual + full trading name
  3. Name of partnership + (A Firm)
  4. Full registered name + (suffix i.e plc/Ltd)
24
Q

In Money claims
What is the value of the claim?

Small Claims Track
Fast Track
Multi Track

A

Small Claims Track: No more than £10,000

Fast track = £10,001-£25,000

Multi Track = £25,001 +

25
Q

In Personal Injury claims what values are involved in each track?

Small Claims Track

Fast Track

Multi Track

A

Small = Value of claim no more than £10,000 and PSLA no more than £1,000

Fast = Value of claim no more than £25,000 and PSLA no more than £1,000

Multi = Value of the claim more than £25,000 and PSLA more than £1,000

26
Q

For a claim to be issued in the HC what values must be involved?

A

Money claims = more than £100,000

PI claims = more than £50,000

27
Q

When the C is calculating what they expect to recover what must they disregard?

A

Interest
Costs
Contributory Negligence
Counter claim or set out

28
Q

What specifically needs to be included in a particular of claim when it is a PI case?
as set out in PD

A

C DOB + details of injury

Schedule of past and future expenses and losses which they claim

Medical evidence if relied upon

29
Q

If a C want to rely on evidence of a conviction, what must they do?

A

Specific set out that they plan on relying on the conviction in the particulars of claim

And give details of the type of conviction, court that made the conviction and the issue in the claim to which it relates

30
Q

Give examples of the type of things that must be specifically set out in the particulars of claim if the C wishes to rely on them in support of their claim

A

Fraud
Misrepresentation
Undue influence

31
Q

When the claim is based on a written agreement does this need to be included with the particulars of claim?

What is the agreement was oral?

A

Yes should be attached

If oral/conduct agreement = Particulars of claim should set out the words/conduct used and who/when/where they were spoken

32
Q

If the D dispute the C’s statement of value what must the D do?

A

State why they dispute it; and

Give their own statement of the value of the claim

33
Q

When can a D include a set off in their defence?

A

If D contends they are entitled to money from the C; and

D relies on this as a defence to whole/part of the claim

34
Q

When considering whether to allow an amendment to the particulars of claim what will the court consider?

A

Overriding objective
Reason for amendment
Need to balance justice of amendment with the injustice caused by allowing it
Need fo real prospect of success of the amended claim

Clarity of the amendment
Timing of the amendment

35
Q

How to the court approach very late amendments?

A

Where there is a risk that the trial date might be lost = unlikely to be allowed

But if amendment has been foreshadowed in the papers, so doesn’t come as a surprise to other parties = may be allowed

Heavy burden lies on the party seeking the amendment - Must provide good explanation as to why they did not apply earlier

36
Q

If the Defendant believes that the issue of causation rests with the Claimant, does he need to address this within the defence?

A

D will require C to prove that X (allegation in the C’s pleaded case)

37
Q

If a party requires Further Information, does that party have to apply to the court for an order to obtain that information?

If the claim is made via latter, what should the letter make clear?

A

No first should serve on the party from whole they are seeking clarification a written request for that clarification or information, and state a date by which the response should be served (must be reasonable amount of time)

That the letter is distinguished from routine correspondence and shouts state that it contains a request made under put 18 and deal with no other matters other than the request itself

38
Q

When making a Request for Further Information what label do the parties have?

A

• 18PD,1.1:
◦ The party seeking clarification or information = the first party
◦ The party from whom the clarification or information is sought = the second party

39
Q

If the second party fails to respond or refuses the request for further information and the first party seeks an order from the court in relation to the request, what factors will the court consider in deciding the application?

A

When considering whether to make an order the court must have regard

(a) to the likely benefit which will result if the information is given; and
(b) to the likely cost of giving it; and
(c) to whether the financial resources of the party against whom the order is sought are likely to be sufficient to enable that party to comply with such an order.

These considerations are consistent with the “overriding objective”

40
Q

When a party makes a Request for Further Information can it request from the other party any information about the claim?

A

A request should be concise and strictly confined to matter which are reasonably necessary and proportionate to enable the first party to prepare his own case or understand the case he has to meet

41
Q

Does a Request for Further Information have to be verified by a statement of truth?

A

Not the request itself but the response should be

Civil Litigation (29 decks)

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