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FLK 1 DISPUTE RESOLUTION > TB - statements of case > Flashcards

TB - statements of case Flashcards

1
Q

what docs are needed to commence a claim against a defendant?

A

a claim form, and if being prepared separately, a particulars of claim are required to commence a claim

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2
Q

When a defendant receives a claim, they’re limited to two responses only - they can either admit it or defend it completely.
True or False?

A

false - defendant responds to each allegation made in one of three ways

1) admit allegation
2) defend allegation
3) enter a non-admission against the allegation

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3
Q

Can a defendant party also make a separate claim against the claimant?

A

yes - if the defendant has a separate claim against the claimant, they can enter a counterclaim at the same time as filing their defence to the principal claim

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4
Q

what steps can a defendant take if the claimant’s particulars of claim need to be clarified?

A

a defendant is entitled to make a request for further info about the points in the particulars of claim that require clarification - they would submit that request in writing to the claimant, allowing them a reasonable time limit to respond

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5
Q

What’s the purpose of a defence?

A

to allow the defendant to indicate to the court what their position is in relation to each of the allegations that have been made against them

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6
Q

what is a statement of case?

A

a document that’s used to set out a party’s case in civil litigation

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7
Q

statements of case can take various forms depending on …

A

the circumstances and whether the party is a claimant or defendant

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8
Q

what are examples of statements of case?

A
  • claim form
  • particulars of claim
  • defence
  • reply to defence
  • part 20 claim
  • defence to part 20 claim
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9
Q

NOTE

A

SQE1 requires you to know purpose of above docs, as well as their structure and content

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10
Q

what is the claim form

A

one of two primary docs that’s used to commence a civil claim

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11
Q

what happens once the claim form is issued?

A

this commences the claim against the defendant

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12
Q

what’s the second document used to commence a civil claim?

A

particulars of claim

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13
Q

does the claim form include a space for the particulars of claim to be included?

A

yes - claim form (N1) includes a space for POC to be included, but, commonly it’s drafted as a separate document and attached to the claim form

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14
Q

what’s the purpose of the claim form?

A

it’s the doc used to start proceedings and contains info relevant to the proceedings

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15
Q

which info does the claim form request the claimant to complete?

A
  • claimant name and address
  • defendant name and address
  • brief details of claim
  • claim value
  • preferred county court hearing centre for the hearings
  • defendants address for service
  • particulars of claim
  • statement of truth
  • claimant or their legal representatives address for correspondence
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16
Q

Claimant name and address

A

insert details of the correct claimant

if the claimant is a company or a partnership, must ensure they’re identified as the claimant party

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17
Q

Defendant name and address

A

ensure this is accurate

inserting the incorrect identity of the defendant will potentially lead to the claim being struck out, or at best, you having to make an application to amend the statements of case

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18
Q

Brief details of claim

A

this box must contain:
- a concise statement of the nature of the claim (preferably single)

  • the remedy the claimant is seeking
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19
Q

Claim Value

A

specified claims - the amount that’s being claimed without including interest

unspecified claims - the claimant must enter ‘ i expect to recover..’ followed by one of the following value brackets:
- not more than £10,000
- more than £10,000 but not more than £25,000
- more than £25,000

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20
Q

can there be circumstances where the claimant can’t estimate how much they’re expecting to recover - what must they write in this instance?

A

yes - they must write ‘i cannot say how much i expect to recover’

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21
Q

preferred county court hearing centre for the hearings

A

the most convenient county court for a face-to-face hearing must be inserted here so that the court can transfer the claim after it has been issued, if it thinks appropriate

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22
Q

Defendants address for service

A

if the court is serving the claim form, the title, full name, address and postcode of the defendants address for service must be inserted here

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23
Q

statement of truth

A

this confirms that the party signing the doc believes that the facts stated in it are true

in the case of the N1 claim form, it’s signed by either the claimant, their legal rep or their litigation friend

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24
Q

claimant or their legal reps address for correspondene

A

the address the claimant would like the court to use to write to them

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25
Q

EXAM WARNING

A

if asked about defendants appropriate address for service, remember the CPR prescribe the location of this depending on the status of the defendant

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26
Q

what is particulars of claim

A

document setting out the case of the claimant and specifying the facts relied on

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27
Q

the purpose of the POC is set out in CPR 16.4(1)

this states the POC should provide…

A
  • a concise statement of the facts on which the claimant is relying
  • details of any interest that the claimant is claiming
  • a statement and accompanying grounds if the claimant is seeking either exemplary or aggravated damages
  • any other matters required for the type of claim as set out in the relevant practice direction
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28
Q

What are exemplary damages?

A

aka punitive damages

  • designed to punish the defendant if allegations regarding their poor conduct contained in the POC are proven
  • aim of exemplary damages being awarded is to deter defendant and others from behaving same way in future
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29
Q

What are aggravated damages?

A

additional damages claimed because the defendants behaviour has caused the claimant mental distress, injury to feelings or anguish

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30
Q

structure and content of POC in contract

A
  • parties to claim and their status
  • factual chronology
  • contract and its terms
  • how the contract was allegedly breached
  • consequences of breach
  • damages claimed
  • interest claimed
  • statement of truth
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31
Q

POC in contract
parties to the claim and their status

A

opening para of POC sets out who the parties are and what their status is for the purposes of the claim

example - at all material times, the claimant was a company specialising in the design, manufacture and supply of bolts. at all material times, the defendant was a customer of the claimant’

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32
Q

POC in contract
factual chronology

A

court expects a concise chronology that covers all of the material facts which relate to the legal basis of the claim

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33
Q

POC in contract
contract and its terms

A

court will expect to see details of how the contract was made, what discussions took place beforehand, what terms were agreed and what evidence exists

if the contract is written, the CPR require a copy of the contract to be attached to the POC

if the contract is oral, the POC should set out the contractual words used and state by whom, to whom, when and where they were spoken

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34
Q

POC in contract
how the contract was allegedly breached

A

the next step is to outline the terms of the contract that have allegedly been breached and how the defendant has breached them

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35
Q

POC in contract
consequences of breach

A

this sets out what happened as a result of the defendants alleged breach, specifically how it impacted the claimant

36
Q

POC in contract
damages claimed

A

this sets out the nature and amount of the losses the claimant suffered as a result of the defendants alleged breach

37
Q

POC in contract
Interest claimed

A

its important to include this as the court will not award interest unless it’s specifically claimed

rate of interest claimed on a specified amount is determined by one of the following:

  • if there’s a rate of interest specified in the contract, the court will apply this
  • an annual statutory rate of 7% if the rate isn’t specified in the contract
  • s rate of interest decided by the court exercising its discretion

the interest sum claimed should be broken down into the daily rate of interest and how many days have elapsed since the date of breach to the date of commencement of proceedings

the para should make a claim for ongoing interest on a daily basis until the date that a final judgement or order is made

38
Q

POC in contract
statement of truth

A

this confirms that the party signing the doc believes the facts stated in it are true

its signed by either the claimant, their legal rep or their litigation friend

39
Q

POC in tort
parties to the claim and their status

A

the opening para of the POC sets out who the parties are and what their status is for the purposes of the claim

eg// at all material times, the claimant was the driver of a grey nissan motor vehicle, registration number AB65 XYZ. at all material times, the defendant was the driver of a red ford motor vehicle, reg number ZC70 HVA

40
Q

POC in tort
factual chronology

A

as with POV for breach in contract, this covers all material facts that relate to the legal basis of the claim

41
Q

POC in tort
the relevant duty of care and why D owed it to C

A

this should set out the relevant DOC and how the circumstances and facts of the case support the fact that
- d had a duty of care
- d owed a duty of care to claimant

42
Q

POC in tort
how the duty of care was allegedly breached

A

this section should set out how, when and where the defendant allegedly breached the duty of care they owed to the claimant

43
Q

POC in tort
causation

A

defendant is only liable if the claimant can establish that the defendants breach has resulted in some harm.
this is causation and it must be set out in the POC

only strict liability torts are exempt from this

44
Q

POC in tort
damages claimed

A

for specified claims, this section sets out the nature and amount of losses that the claimant suffered as a result of D’s alleged breach - this should be broken down where possible so that the court can see exactly how the claimant has calculated the overall damages claimed

unspecified claims - claimant should indicate the value bracket for the damages they’re seeking (less than £10000, more than £10000 but not more than £25000 or more than £25000), or alternatively inform the court that they don’t know the value of the claim they’re making

45
Q

POC in tort
interest claimed

A

its important to include this as the court won’t award interest unless it’s specifically claimed

statutory basis of interest claimed is set out by claimant in POC, but rate is decided by court using their discretion under either s35a supreme court act 1981 (for high court claims) or s69 county courts act 1984 (for county court claims)

46
Q

POC in tort
statement of truth

A

this confirms that the party signing the doc believes that the facts stated in it are true - signed by either the claimant, their legal rep or their litigation friend

47
Q

what is the defence?

A

the doc that’s prepared and submitted by the defendant in response to receiving a claim form and POC

48
Q

What is the purpose of the defence?

A

to allow the defendant to indicate to the court what their position is in relation to each of the allegations which have been made against them

this is with the intention of narrowing the issues between the parties and ensuring that only the matters that are actually in dispute are brought before the court

49
Q

in which ways can a defendant respond to each allegation made against them?

A

1) they admit the allegation
2) they don’t admit the allegation (non admission) and require proof from the claimant as to its truth
3) they deny the allegation

50
Q

the defendant will respond to each of the numbered paras in the POC, setting out their position in relation to each of those numbered paras (eg para 1 is admitted)

what must the defendant do if they deny the allegation?

A

they must explain their reasons for the denial, set out their own version of events and explain how that differs from that of the claimant

51
Q

What is non-admission?

A

where the defendant neither admits nor denies an allegation

a defendant will make a non-admission where they have no knowledge about the facts or allegations that have been made against them in a particular paragraph of the POC

52
Q

the defendant will state their position in relation to each of the allegations made.if they admit the para, the court will consider that para an agreed point

if they make a non-admission or denial, who does the BOP rest with to prove the allegation on the balance of probabilities

A

the claimant

53
Q

what structure will the defence follow?

A

the defence will follow the structure that’s set out in the POC, where possible

54
Q

NOTE

A

if the POC have been properly drafted, they will set out the claimants factual case in chronological order in a series of numbered paras

the defendant will simply follow this lead and respond to each of the allegations made with either a denial, non admission or admission

if POC hasn’t been drafted as concisely as it should have, D should ensure their defence deals with each allegation made in chronological order where possible, setting out the reasons for denial and explaining their version of events

55
Q

Apart from the defendants response to each allegation, what else should the defence include?

A
  • the claim number (allocated to the claim when it was issued)
  • parties to the dispute
  • location of court to which the claim has been allocated
  • statement of truth signed by defendant, their legal advisor or litigation friend
56
Q

if the defence raises issues that haven’t been covered in the POC, what can the claimant do?

A

reply to the defence

57
Q

what is the reply to defence?

A

a formal statement of case that responds to any issues such as if the defence raises issues that haven’t been covered in the particulars of claim

58
Q

is the claimant required to file a reply to defence or is it optional?

A

optional

59
Q

what is the structure and contents of a reply to defence?

A

claimant needs to specify areas of the defence they wish to respond to and put to the court their version of events

60
Q

reply to defence example

A

the defendant claims in paragraph 3 of the defence that the meeting to negotiate the contract took place on 15 july at their factory in manchester. this is denied. the defendant was in london all day on 15 july and has evidence to support this

61
Q

What is a part 20 CPR claim?

A

an additional claim that’s brought by the defendant to an action

62
Q

is the part 20 claim drafted as part of the same document as the defence or different?

A

yes - same document

63
Q

do the defence and part 20 claim perform different functions for the purposes of the proceedings overall?

A

yes

64
Q

in a defence and part 20 claim, which is drafted first?

A

defence, followed by the part 20 claim

65
Q

which two categories does the CPR separate part 20 claims into?

A

1) counterclaims
2) other additional claims

66
Q

KEY TERM - part 20 claim

A

an additional claim brought by the defendant to proceedings after they have been served with the claim form and POC

part 20 claim is commonly a counterclaim, which is a claim made by D against a claimant, but which is considered part of the same overall proceedings

it’s essentially a new cause of action

67
Q

who is the burden of proof on for the counterclaim?

A

BOP is on the defendant as it would be had they issued the counterclaim as a separate stand alone claim

68
Q

what’s the purpose of a counterclaim?

A

to allow the defendant to bring a cause of action against the claimant for losses that they have allegedly suffered

69
Q

NOTE

A

A counterclaim needs to be a claim in its own right and so must be more than just a denial of the claim

70
Q

can a counterclaim be based around the same set of facts as the initial claim or can it be entirely different?

A

it can be based on same facts or entirely different

71
Q

why is a counterclaim generally raised?

A

to save the cost, time and inconvenience of the defendant issuing a separate claim against the claimant

72
Q

are the rules relating to drafting a counterclaim the same as those for drafting a POC?

A

yes

73
Q

PRACTICE EXAMPLE

Robert commences proceedings against Shelby for recovery of a debt of £6000 based on breach of contract.
4 years ago, shelby loaned rob £3000 to assist him with purchasing a vehicle. despite the terms of the agreement being that he would pay the amount back in 30 month instalments. rob has failed to make any repayments to shelby

can shelby bring a counterclaim against Rob for the £3000 despite it having nothing to do with robs initial claim?

A

yes

shelby would need to file a defence to robs claim and commence a part 20 claim against rob.

the defence and counterclaim would form part of the same doc, but as they perform diff roles in the context of proceedings, shelby would draft the defence first followed by the counterclaim

she would also have to pay a court fee in connection with the counterclaim

74
Q

EXAM WARNING

A

a defendant is entitled to enter a counterclaim against the claimant without permission provided it’s submitted at the same time as the defence

if the defendant wishes to issue a counterclaim against the claimant after the time period for filing the defence has elapsed, then they will require the permission of the court under CPR 20.4(2)(b)

75
Q

what can other additional claims be?

A
  • where the claimant has issued proceedings against two defs in a building dispute and the first D wishes to seek a contribution or indemnity from the second defendant as they don’t believe they were responsible for the loss
  • where D wishes to add a party who isn’t named in the original proceedings in a breach of contract action, such as in a building dispute where the main builder wishes to add a subcontractor to proceedings, as the act that led to the loss was committed by the subcontractor
76
Q

Would any additional claim come first or the defence?

A

in the same way as counterclaims, any other additional claim would follow from the defence and be filed with the court as one document

77
Q

the claimant is entitled to file a defence to a part 20 counterclaim that’s made against them by the defendant, within how many days of it being served on them?

A

within 14 days

78
Q

the claimant and defendant can agree between themselves an extension of up to how many days for the claimant to file a defence to counterclaim?

A

up to 28 days

79
Q

part 18 of the CPR allows either the court or any party to proceedings to request further info about a statement of case - what must the party who requests info do?

A
  • send a prelim request in writing to the other party stating a reasonable date by which a response should be received
  • if a response is received but is insufficient, or the other party ignores the request, the party making the request can apply to the court for a part 18 order requiring the other party to provide the info requested
80
Q

if a party receives a request for further info about statements of case, what are they obliged to do?

A
  • clarify any matter that’s in dispute in the proceedings
  • give additional info in relation to any such matters

this applies whether or not the matter is contained or referred to in a statement of case

81
Q

does a request for further info about statements of case need to be proportionate to the proceedings?

A

yes, parties can’t simply submit requests that are entirely irrelevant to the matter in dispute

82
Q

once a party has received a request for further info from either the opposition or the court, what must they do?

A

they must file their response and serve it on the other parties

this must be done within the time limit set out by the court and must be accompanied by a statement of truth

83
Q

what are the two docs used to commence a civil claim

A

claim form and particulars of claim

84
Q

what is the reply to defence?

A

a formal statement of case that responds to any issues raised in the defence which haven’t been covered in the POC

85
Q

what is a part 20 claim

A

an additional claim - most commonly a counterclaim that’s brought by the defendant to proceedings after they have been served with the claim form and particulars of claim

86
Q

Part 18 allows either the court or any party to proceedings to request further info about a statement of case - true or false

A

true

87
Q
A

FLK 1 DISPUTE RESOLUTION (11 decks)

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