Written Pleadings II Flashcards
Where can you find the structure or anatomy of an initial writ?
– OCR, Chapter 3. – Form G1. - Provision for the form of written writ. The appropriate form in an ordinary action is Form G1. – Styles book.
What does an initial writ look like?
P.85 of the styles - the format is most important here.
What is the condescendence?
After the instance, : “The pursuers crave the court” this is the crave, where you are asking the court for something.
Next, is Condescendence - where you set out what your case is: (1) by matter of fact and (2) by matter of law.
Each para of the condescendence is called an article of condescendence - first para should explain who parties are and why the court has jurisdiction e.g. Defender is domiciled in the area of the civil court so the court has jurisdiction.
Domicile is a ground of jurisdiction which can be easy to establish for a natural person. The rest of the condescendence will contain things:
1. What as a matter of fact the pursuer says the case is about
2. The pursuer’s case as a matter of law
3. An explanation of why the pursuer is entitled to the remedy or remedies which are sought in the action.
Articles of Condescendence. In the initial writ these are known as:
– Numbered paragraphs in which pursuer sets out all facts necessary to make the case relevant together with fair notice for all opponents.
– Form G1 - the only guidance on these is given here,s ays you should state in numbered paragraphs the facts which form the action.
- The content in any given case depends on the substantive law in that area.
• Rules on these
– Include facts only not evidence or law (see Bonnor v. Balfour
Kilpatrick Ltd 1974 SC 223). Plead the fact you want the sheriff to find proved, not the evidence you need to prove it — e.g. The defender drove through a red light not X saw defender run a red light.
- Foreign law is a question of fact - so must make averments of the law and prove it by expert in that system. In the absence of pleadings then it is seen that foreign law is the same as scots law ( Bonnor v. Balfour
Kilpatrick Ltd 1974 SC 223)
- In a delictual action the duties require to be plead
– One fact per sentence. The averments should be short. This can be stilted but there is good reason for this.
- Read any judgement of Lord Denning for the style
First Article of Condescendence.
Always sets out
– Designation of parties.
– The ground which the court is said to have Jurisdiction.
– OCR, r.3.1. - Averments need only be made where there is reason to believe there is such agreemnt.
• Other Articles of Condescendence - e.g. Terms of any agreement, or subject matter or prorogating jurisdiction to another court. Refers to the situation where parties agree that another court is to have jurisdiction
- The content will depend on the nature of the action and what allows the claim to be set out most logically, succinctly and persuasively.
Example:
Action for damages for breach of contract.
– Article 1 (parties, jurisdiction, etc).
– Article 2 (contains circumstances in which contract entered into - e.g. Offer and acceptance).
– Article 3 (specific term or terms on which you rely).
– Article 4 (facts which amount to breach of that term
or those terms).
– Article 5 (set out loss and damage said to be caused by breach or breaches).
– Article 6 (formal averments about the action being necessary).
Action for payment of a contractual debt (straightforward example_.
– Article 1 (sets out designations of parties, jurisdiction, etc).
– Article 2 (circumstances in which contract entered into).
– Article 3 (narration of the invoices which have been rendered and not paid).
– Article 4 (that the action is necessary).
Delictual action.
– Article 1 (parties, jurisdiction, etc).
– Article 2 (circumstances of the incident which has occurred which gives rise to liability - factual background).
– Article 3 (duties owed by the defender to the pursuer and which he has breached - duties can be spread against two articles if (1) is common law and (2) is statutory).
– Article 4 (the loss, injury, and damage which has been caused to the pursuer).
– Article 5 (formal averments about the action being necessary).
Final comments.
– Do not lump all substantive averments into the second article of condescendence.
– Some actions have prescribed content for the Statements of Fact.
- A series of short articles is much preferable to one long article particularly where it is likely the averments will be defended
- Pleadings in personal injuries actions have specific averments.
What are the pleas in law?
The last part is the pleas in law. Those are an encapsulation of the pursuer’s legal analysis of the case. So e.g. In the example the pursuers.
Need to assess the evidence we have which comes initially from the client. Will then have to follow this up with independent investigations and analyse the evidence we have looking for strengths and weaknesses. Identify good facts and bad facts.
What is it you are asking the court to do and does the law allow it? Must draft submissions in line with the law.
Is it a delictual claim or a property claim?
Then think about what the substantive law we are working with requires a party to prove?
The pleas-in-law are:
– Distinct legal propositions, specifically applicable to the facts of the case.
– One plea in law for each legal proposition being advanced.
– Must be supported by relevant and sufficiently
specific averments.
– Single sentence.
– No need for pleas-in-law relative to warrants e.g. Diligence on the dependence and expenses in the pleas in law.
4(4) The pleas-in-law (continued)
• Example - action where plea in law of delict:
– “The pursuer, having sustained loss, injury, and damage through the breach of contract et separatim fault of the defenders, as condescended upon, is entitled to reparation from the defenders therefor.”
This proposition is specifically applicable to the facts of the case as it refers to the relationship between pursuer and defender and articles of condescending.
In an action for payment of a debt you might say”
– “The sum sued for being a debt due by the defender to the pursuer under and in terms of the contract referred to in the condescendence, decree therefor should be pronounced as craved.”
4(4) The pleas-in-law (continued)
• The customary order of pleas-in-law is:
1. Pleas justifying decision in his favour
2. Pleas refuting defenders case
4. Pleas…
- State whether action is contract or delict. Also persons should have no difficult seeing why defender seeks order in the craves.
• Role in understanding the pleadings.
• Formulation to avoid (see A Kelly Ltd v. Capital Bank plc 2004 SLT 483 Which criticised a plea in law on the basis that the plea in law did not allow the defender to know the legal basis of the actionand RHM Bakeries (Scotland) Ltd v. Strathclyde Regional Council 1985 SC (HL) 17 at p.38.
• Miscellaneous issues.
The initial writ should be signed and include a note of the representatives details.
What is the idea of relevancy?
The idea is that even if the pursuer proves everything which is set out in the pleadings as a matter of law, they are not entitled to the remedies which are sought.
You must identify what the facts are which you rely on without going into the detail of all of the evidence and must identify the legal argument is going to be without setting out a length the argument you will give at court.
What is the other cornerstone?
Fair Notice
What are the craves?
The crave begins:
– “The pursuer craves the court….” And sets out in numbered paragraphs the craves sought by the court.
- It is a formal request to the court to grant an order of some sort, the court can only give you a remedy which you ask for
• e.g. Usually it is a Crave for payment of money and this reads:
– E.g. “[t]he pursuer craves the court to grant decree for payment by the defender to the pursuer of the sum of ONE HUNDRED THOUSAND POUNDS (£100,000) STERLING with interest thereon at the rate of eight per cent per annum from the date of citation until payment”.
Usually payment is sought in sterling but it is possible to have crave for payment in foreign currency.
– Currency (see Commerzbank AG v. Large 1977 SC 375 - soldier for glasgow ran up large overdraft in germany. The bank sued him hear and sought payment in Deutchsmark. The inner house said this was competent.
4(2) The craves (continued)
• It is usual to seek interest on any sum craved
– Judicial rate is the usual (8% at current - this is considerably above any commercial rate of interest)
• Farstad Supply AS v. Enviroco Ltd 2013 SC 302 — held the courts have a discretion when awarding interest to have regard between the mismatch of the judicial and market rates.
• Personal injury action - used to be the norm to seek interest from date of accident, now more normal to seek payment of principal sum to include interest from the date of decree and interest will automatically be awarded at judicial rate at date of decree
• Contract - rate from date of decree (when action served on defender). The contract can make its own provisions for rates and dates of interest.
• Late Payment of Commercial Debts (Interest) Act 1998 applies in some cases - this makes certain provision as to when payment becomes due and the rate at which it should be charge.
What rate, what date?
What is a crave for interdict?
Other types of crave which stop the threatened wrong specifiying very carefully what the court should order the defender to stop doing:
– Precision required (see Kelso School Board v. Hunter (1924) 2 R 229 — an imprecise crave for interdict is incompetent.
– Interim interdict - in such a case the court is asked to grant interdict pending final determination, the court has limited information and is unable to enquire into who is right or wrong.
• Prima facie case requirement (party must prove a strongly arguable case)
• Balance of convenience (concerned with whether it would be more convenient to grant interim order than refuse it)
Mirza v. Salim 2014 SLT 875
court is often concerned with maintaining the status quo pending the final determination of the case. If it transpires that the interim interdict was not justified the pursuer will be liable to the defender in damages.
What is a Craves for decree ad factum praestandum?
An interdict is a negative order
This is a Positive order - in which a person is ordered to do something.
– E.g. Ordaining defender to implement of missives in return of payment of the purchase price.
– cf. section 46 of the Court of Session Act 1988.
Crave must be framed with absolute precision and defender left in no doubt as to what he is to do. Cannot use double negatives.
Section 46 allows the court of session but not the sheriff court in certain circumstances to pronounce an order ordaining a party…which could have been prevented by granting of interdict.
What is a crave for declarator?
– E.g. declarator of servitude right of access exists for the benefit of his property across land owned by the defender. These are overused and must ask whether it is really necessary
– Bare declarator - sometime said to be incompetent.
– Is it necessary?
- Often you can plead the substantive crave alone e.g. Payment of money
What is a cumulative and alternative crave?
– Missives: first crave = implement of contract, and crave for interdict and interim interdict to stop the defender selling in the mean time and pursuer include crave of damages where court not willing to grant interim interdict
- Implement and interdict (cumulative).
– Implement and damages (alternatives).
What is a warrant?
– Arrestment and inhibition on the dependence. These are interim remedies which allow the pursuer to . Now pursuer can only get such a warrant if they can reach the strict requirements of:
– Debtors (Scotland) Act 1987, Part 1A. These requirements are, must be:
• Prima facie case requirement (real case on the merits)
• Real and substantial risk that enforcement of decree will be defeated (e.g. Defender insolvent or verging or dissipating its assets)
• Reasonable in all the circumstances (inc. Effect on third parties)
• Expenses (court always has discretion - always include a crave for expenses)
