Unit 3 Flashcards
What is a statement of case?
Formal documents in which the parties concisely set out their respective cases.
They are served between parties and filed at court.
Ensures that each party knows their opponet’s case at an early stage, enabling them to assess how strong it is, to determine what evidence is needed to counter if and to consider whether to make an offer to settle and on what terms.
At trial, the court will only decide on those issues that are raised in the statement of case.
Served in sequence.
Statement of case sequence
- (C) Claim form + particualrs of claim;
(D) If the case is contesed: defence;
If deemed necessary, the (C) will reply.
- (C) Claim form + particualrs of claim;
(D) may file a counterclaim (+ defence);
The (C) will need to serve a defence to the counterclaim.
If any party requires additional details of another party’s case, they may file a request and a response to the request for futher information must be served.
Part 16.2 CPR - Contents of a claim form
(1) The claim form must –
(a) contain a concise statement of the nature of the claim;
(b) specify the remedy which the claimant seeks;
(c) contain a statement of value in accordance with rule 16.3, where the claimant is making a claim for money;
(d) contain a statement of the interest accrued on that sum, where the only claim is for a specified sum; and
(e) contain such other matters as may be set out in a practice direction.
(1A) In civil proceedings against the Crown, as defined in rule 66.1(2), the claim form must also contain –
(a) the names of the government departments and officers of the Crown concerned; and
(b) brief details of the circumstances in which it is alleged that the liability of the Crown arose.
(1A1) In a claim to which Part 45 does not apply, no amount shall be entered on the claim form for the charges of the claimant’s legal representative, but the words ‘to be assessed’ shall be inserted.
(2) If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.
(3) If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.
(4) If the defendant is sued in a representative capacity, the claim form must state what that capacity is.
(5) The court may grant any remedy to which the claimant is entitled, even if that remedy is not specified in the claim form.
(Part 22 requires a claim form to be verified by a statement of truth)
Part 16.3 CPR - Statement of vlaue to be included in the claim form
1) This rule applies where the claimant is making a claim for money.
(2) The claimant must, in the claim form, state –
(a) the amount of money claimed;
(b) that the claimant expects to recover –
(i) not more than £10,000; or
(ii) more than £10,000 but not more than £25,000; or
(iii) more than £25,000 but not more than £100,000; or
(iv) more than £100,000; or
(c) that the claimant cannot say how much is likely to be recovered.
(3) Subject to paragraph (3A) and (3AA), in a claim for personal injuries, the claimant must also state in the claim form whether the amount which they expect to recover as general damages for pain, suffering and loss of amenity is –
(a) not more than £1,500; or
(b) more than £1,500.
(3A) Where—
(a) a claim for personal injuries arises from a road traffic accident which occurred on or after 31st May 2021; and
(b) rules 26.8, 26.10 or 26.11 do not apply to that claim,
the claimant must state in the claim form whether the amount which the claimant expects to recover as general damages for pain suffering and loss of amenity is—
(i) not more than £5,000; or
(ii) more than £5,000.
(3AA) Where—
(a) a claim for personal injuries arises from a road traffic accident; and
(b) rule 26.10 applies to that claim, the claimant must state in the claim form whether the amount which the claimant expects to recover as general damages for pain, suffering and loss of amenity is—
(i) not more than £1,000; or
(ii) more than £1,000.”.
(3B) ‘Road traffic accident’ has the meaning ascribed to it by rule 26.9(3).
(4) Where a tenant of residential premises, or a contract-holder of an occupation contract of a dwelling under section 7 of the Renting Homes (Wales) Act 2016, claims an order against a landlord requiring the landlord to carry out repairs or other work, the claimant must also state in the claim form—
(a)whether the estimated costs of those repairs or other work is—
(i)not more than £1,000; or
(ii)more than £1,000; and
(b)whether the value of any other claim for damages is—
(i)not more than £1,000; or
(ii)more than £1,000.
(5) If the claim form is to be issued in the High Court it must, where this rule applies—
(a)state that the claimant expects to recover more than £100,000;
(b)state that some other enactment permits or requires the claim to be brought in the High Court and specify that enactment;
(c)if the claim is for personal injuries, state that the claimant expects to recover £50,000 or more; or
(d)state that the claim is to proceed in one of the specialist High Court lists and state which list.
(6) When calculating how much the claimant expects to recover, the claimant must disregard any possibility—
(a)that the court may make an award of—
(i)interest;
(ii)costs;
(b)that the court may make a finding of contributory negligence;
(c)that the defendant may make a counterclaim or that the defence may include a set-off; or
(d)that the defendant may (under section 6 of the Social Security (Recovery of Benefits Act 1997) be liable to pay direct to the Secretary of State part of any award of money made by the court to the claimant against the defendant.
(7) The statement of value in the claim form does not limit the power of the court to give judgment for an amount which it finds the claimant is entitled to.
Part 16.4 CPR - Contens of the particulars of claim
(1) Particulars of claim must include—
(a)a concise statement of the facts on which the claimant relies; (outline all the facts giving rise to the dispute, you must demonstrate a CAUSE OF ACTION on which the claim will be based)
(b)if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
(c)if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and the grounds for claiming them;
(d)if the claimant is seeking provisional damages, a statement to that effect and the grounds for claiming them; and
(e)such other matters as may be set out in a practice direction.
In a breach of contract claim, where the contract relates to the parties acting in the course of business, the C should confirm the D’s business in the particulars of claim.
(2) If the claimant is seeking interest they must—
(a)state whether they are doing so—
(i)under the terms of a contract;
(ii)under an enactment and, if so, which; or
(iii)on some other basis and, if so, what that basis is; and
(b)if the claim is for a specified amount of money, state—
(i)the percentage rate at which interest is claimed;
(ii)the date from which it is claimed;
(iii)the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv)the total amount of interest claimed to the date of calculation; and
(v)the daily rate at which interest accrues after that date.
(Part 22 requires particulars of claim to be verified by a statement of truth).
Part 16.5 CPR - Content of defence
(1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating—
(a)which of the allegations are denied;
(b)which allegations they are unable to admit or deny, but which they require the claimant to prove; and
(c)which allegations they admit.
(2) Where the defendant denies an allegation—
(a)they must state their reasons for doing so; and
(b)if they intend to put forward a different version of events from that given by the claimant, they must state their own version.
(3) If a defendant—
(a)fails to deal with an allegation; but
(b)sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant,
the claimant is required to prove the allegation.
(4) Where the claim includes a money claim, the claimant must prove any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation.
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.
(6) If the defendant disputes the claimant’s statement of value under rule 16.3 they must—
(a)state why they dispute it; and
(b)if they are able, give their own statement of the value of the claim.
(7) If the defendant is defending in a representative capacity, they must state what that capacity is.
(8) If the defendant has not filed an acknowledgment of service under Part 10, they must give an address for service.
(Part 22 requires a defence to be verified by a statement of truth.)
Defence must include formalities required by the CPR, which include:
* the name of the court;
* the claim number;
* the parties;
* the title (DEFENCE);
* the date and signature of solicitors in the name of the firm;
* the statement of truth; and
* details of who is to be served and where
If the D alleges that the relevant limitation period for the claim has expired, the details of this mmust be given in the defence, when the LP began and expired, and whether it ran under the tems of a conract or under the Limitation Act 1980.
Burden of proof is normally transferred to the C to show the claim is not time-barred.
In some instances the burden of prood falls upon the D, specifically in relation to:
(a) contributory negligence; and
(b) a failure by the C to mitigate its loss.
Part 16.6 CPR - Defence of set-off
16.6 Where a defendant—
(a)contends that they are entitled to money from the claimant; and
(b)relies on this as a defence to the whole or part of the claim,
the contention may be included in the defence and set off against the claim, whether or not it is also an additional claim.
D’s defence is that they should not have to pay the balance due to the C if they can establish they have a counterlcaim. It will set off the amount claimed and the C may have to pay the D damages.
Part 16.7 CPR - Reply to defence
(1) If a claimant does not file a reply to the defence, the defendant must prove the matters raised in the defence.
(2) If a claimant—
(a)files a reply to a defence; but
(b)fails to deal with a matter raised in the defence,
the defendant must prove that matter even though it is not dealt with in the reply.
(Part 22 requires a reply to be verified by a statement of truth.)
Replies tend to be used if the C wants to repond to matters that have been raised in the defence but which are not covered in the particulars of claim.
What style must be adopted when drafting statement of case?
Clear plain English
When solicitor’s prepare a statement of case, who sign’s it?
The solicitor signs in the name of the firm
What is a big ethical consideration for this topic?
A solicitor must not mislead the court
Do not make accusations without evidence
What if a client has filed a statement of case and subsequently tells their solicitor before the litigation ends that it contains a material error, the effect of which is to mislead the court?
Solicitor should advise the client to amend the statement of acse and, if the client refuses cease to act. In order to keep client confidentiality, the solicitor should not inform the court or any other party of the reasons why they are no longer representing the client.
Contents of particulars of claim for a claim based on breach of contract
Particulars of claim should deal with the essential material facts that will establish the cause of action.
(1) Status of the parties:
* confirm needed details about D (e.g. confirm D’s business)
* C should set out chronological events (may include pre-contractual matters if they are relevant to establishing the claim)
* Next set out the subtance of the matter, including legal elements that underpin the case.
(2) Existence of contract: set the scene
* date contract was signed
* subject matter
* in course of business or not
* oral/written
* consideration
* paragraph 17.3 PD 16 - if a claim if based on a written contract, a copy of the contract must be attached to or served with the particulars of claim.
* paragraphs 17.4 - if the claim if based on an oral contract, the contractual words used by whom, to whom, and where and when they were spoken should be specified.
(3) Terms: relevant express terms and/or implied terms
(4) Performance by C and [purported] by D
* include information concerning the dates that the goods were delivered/payment of the first instalment/what parts of the contract have been performed.
(5) Alleged breach and particularised (allegation of breach)
* section contains details of which terms were breached and specifically how.
* eg. failure to pay for the goods, late delivery or the poor quality of the items supplied.
(6) Factual consequences of breach (particulars of breach)
* continuation of chronological events where the C explains what happened as a result of what the D did wrong.
* eg. poor quality goods supplied to a retailer could not be sold on to consumers or that repair work had to be carried out.
(7) Damage and loss alleged and particularised
* the loss must be alleged generally, for example: by reason of the D’s breach thof the contract, the C has suffered damage and loss.
* The losses should then be itemised so it is clear to the D exactly what is being claimed from them and how this is calculated.
(8) Claim interest
* where the remedy is sought by the C is either damages or the repayment of a debt, the court may award interest on the sum outstanding, but only if claimed. In breach of contact cases, these are three alternative ways of claiming interest as follows:
* (a) contract states interest rate; or
* (b) statutory right on interest if commercial debt (Late Payment of Commercial Debts (Interest) Act 1998); (does not apply to unspecified (damages) claims or to a specifiied amount (a debt) owned by a consumer) The relevant rate of interest is 8% per annum above the Bank of England’s base rate on the date the debt become due for payment. The C is also entitled to a small, prescribed amount of statutory compensation for the inconvenience of having to recover the debt.
* (c) courts discretion: under s 35A of the Senior Courts Act 1981 (SCA 1981) in respect of High Court Cases, or under s 69 of the County Courts Act 1984 (CCA 1984) for Country Court cases.
* for specified claims the interest must be precisely claculated as a lump sum for the amount that has accrued from breach of contract up to the date of issue of the proceedings, plus a daily rate so it is easy to provide an updated total.
(9) Ending: summary, remedies date, signature, statement of truth, C’s address for service, to the Court/D.
Contents of a particulars of claim for a claim based on negligence
Similar to a claim based on the breach of contract, but content will reflect the legal elements of duty of care, breach of that duty, causation and loss.
The courts has discretion under s 35A of the Senior Courts Act 1981 (SCA 1981) in respect of High Court Cases, or under s 69 of the County Courts Act 1984 (CCA 1984) for Country Court cases, to award interest. Interest is normally, awarded from when the loss was suffered.
What is the purpose of the defence?
A defence sets out a D’s answer to the claim with the aim being so highlight what issues are in dispute.
The purpose of the defence is to narrow down the issues between the parties so that only the matters in dispute are tested in court.
What are the effects of D’s responses to the C’s allegations?
Does the C need to prove the allegation, based on the D’s response?
Admin: C doesn’t need to prove
Non-admission: C needs to prove
Denial: C needs to prove
Best practice points regarding drafting a defence
Take a systematic approch to ensure every allegation in the particulars of claim is addressed and nothing is admitted through omission (note - it is vital to not miss an allegation because the effect is that it is deemed to be accepted).
Mirror, as far as possible, the sequence of events in the particulars of claim, which the defence answering each paragraph in turn.
Point by point basis
Part 20.2 CPR - Counterclaims and Other additional claims (scope)
(1) This Part applies to –
(a) a counterclaim by a defendant against the claimant or against the claimant and some other person;
(b) an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and
(c) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).
What rules don’t apply to additional claims?
Part 20.3 Application of these Rules to additional claims:
(1) An additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.
(2) The following rules do not apply to additional claims –
(a) rules 7.5 and 7.6 (time within which a claim form may be served);
(b) rule 16.3(5) (statement of value where claim to be issued in the High Court); and
(c) Part 26 (case management – preliminary stage).
(3) Part 12 (default judgment) applies to a counterclaim but not to other additional claims.
(4) Part 14 (admissions) applies to a counterclaim, but only rules 14.2(1), (4) and (5) and 14.4(1) apply to other additional claims.
(Rule 12.3(2) sets out how to obtain judgment in default of defence for a counterclaim against the claimant, and rule 20.11 makes special provision for default judgment for some additional claims).
Part 20.4 CPR - D’s counterclaim against the C
(1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.
(2) A defendant may make a counterclaim against a claimant –
(a) without the court’s permission if the defendant files the counterclaim with the defence; or
(b) at any other time with the court’s permission.
(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).
(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.
Part 20.5 CPR - Counterclaim against a person other than the C
(1) Subject to rule 20.7, a defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
(2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
(3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.
A counterclaim stipulates that, effectively, the D could have taken action against the C first and issued proceedings.
Part 20.6 CPR - D’s additional claim for contribution or indemnity from another party
(1) A defendant who has filed an acknowledgment of service or a defence may make an additional claim for contribution or indemnity against a person who is already a party to the proceedings by filing and serving on that party a notice containing a statement of the nature and grounds of the additional claim.
(2) A defendant may file and serve a notice under this rule –
(a) without the court’s permission, if the defendant files and serves it –
(i) with the defence; or
(ii) if their additional claim for contribution or indemnity is against a party added to the claim later, within 28 days after that party files their defence; or
(b) at any other time with the court’s permission.
Indemnity:
A claim for an indemnity may arise where there is a contractual relationship between the D and the third party, in which the latter is obliged by the terms of a contract to indemnify the D if they are found liable for the claim. This may also arise by way of statute.
Contribution:
A claim for a contribution can be made where there are joint wrong-doers and the D argues that the third party is partly responsible for the harm the C has suffered.
Other additional claims:
The D may also made other additional claims without the court’s permission provided this is done tiehr before or at the same time as they file the defence.
Structure of a defence and counterclaim
Heading: DEFENCE AND COUNTERCLAIM
Document will be sub-divided into two sections, defence outlined at the beginning and the counterlcaim following on immediately afterwards.
Best approach to drafting a counterclaim is to treat it as a standalone claim. The counterlcaim can refer back to the defence.
Permission to file a counterclaim is not requires from the court unless the defence has already been filed.
How long does a C have to file a defence to a counterclaim?
The C must file a defence to the counterclaim within 14 days (unless an extention of up to 28 days has been agreed wit the D). If they fail to do so, the D may enter judgement in default on the counterclaim.
Part 17.1 CPR - Amendment to statement of case
(1) A party may amend their statement of case, including by removing, adding or substituting a party, at any time before it has been served on any other party.
(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court.
(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.
(4) A party who files a notice under Part 38 discontinuing all or part of a claim may amend their statement of case without the court’s permission to give effect to the discontinuance.
(Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise)
When applying for permission, the applicant should file a copy of the statement of case with the proposed amendments together with an application notice. The court will then decide whether or not to exercise its discretion to grant the application.
The court will take into account:
(i) the overriding obejctive of dealing with the case justly; and
(ii) at proportionate costs.
The court will need to strike a balance between inujustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if it is permitted.
Part 17.4 CPR - Amendements to statement of case after the end of a relevant limitation period.
(1) This rule applies where –
(a) a party applies to amend their statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 19801;
(ii) the Foreign Limitation Periods Act 19842; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.
(Rule 19.6 specifies the circumstances in which the court may allow a new party to be added or substituted after the end of a relevant limitation period(GL))
Part 18 CPR - Request for further information
(1) The court may at any time order a party to –
(a) clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a statement of case.
(2) Paragraph (1) is subject to any rule of law to the contrary.
(3) Where the court makes an order under paragraph (1), the party against whom it is made must –
(a) file their response; and
(b) serve it on the other parties,
within the time specified by the court.
(Part 22 requires a statement of case, including a response to be verified by a statement of truth)
(Part 53 (defamation) restricts requirements for providing further information about sources of information in defamation claims)
At any time, either the court or the parties may request further information, and if successful, a party will be ordered to:
(a) clarify any matter that is in dispute; or
(b) give additional information in relation to any such matter.
What is the procedure for making or responding to Part 18 requests?
Making the request:
* If either party requires further information, they must (first) serve a written request on the other party, allowing a reasonable time for the response.
* A request should be concise and strictly confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to answer.
* Requests must be made as far as possible in a single comprehensive document (may be sent by letter or a separe document)
* Any request must be headed with the name of the court, the title and number of the claim, and identify that it is a Part 18 request. The request should be set out in separate numbered paragraphs, and state the date for a response.
Responding to a request:
* Response must be in writing, dated and signed by the party or their solicitor. It should set out the same information as the request and then give details of the response.
* reponse must be served on all the parties;
* filed with the court; and
* veritfied by a statement of truth.
If the request for further information is not responded to, or cannot be complied with, an application may be made to the court under Part 18. The court will grant an order if it is satisfied that the request is confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their case or to understand the case against them.
What are interim applications?
Applications that are made after litigation starts but before the trial
Who is considered the ‘respondent’ to an interim application?
The person against whom the order it sought and such other person as the court may direct.
What is an application notice?
A document in which the applicant states their intention to seek a court order.
What is a hearing and how can it be conducted?
Interim application related
The occasion on which any interim or final decision is or may be made by a judge, at which a person is, or has a right to be, heard in person, by telephone, by video or by any other means which permits simultaneous communication.
