Drafting:

Main page:Preface,Analysis and Planning of the page
Extract 1 : Presenting the case in the best promising way with the effectual lingo
Extract 2 : Essentials of argue, defence and counterclaim
Extract 3 : Respond and justification to counterclaims
Extract 4 : Part 20 claims and Witness statement

Essentials of argue, defence and counterclaim:

Particulars of Claim:
A claim will start with a claim form, and ordinarily this will be a Part 7 claim form. You will not be asked to complete one of these in an assessment on the BVC. The usual earliest starting point that a barrister is involved will be in the drafting of the Particulars of Claim, and it is to this that we now turn. There are some general requirements to bear in mind. Under the CPR 16.4 (1) (a) the Particulars of Claim must include a concise statement of the facts on which the Claimant relies. Under the Queens Bench Guide the Particulars of Claim must set out the Claimants claim clearly and fully. In addition if the claim is based on an oral agreement the Particulars of Claim should set out the details of the agreement, and if it is based on a written agreement, then a copy should be attached and referred to in the Particulars of Claim.

The example provided in this section is for a tort case, however prior to that we shall deal with a Particulars of Claim for a contract case. You may find it useful to refer to the Quick Art case Particulars of Claim in the Negotiation section.

In a contract action you should first state the parties and the brief background. State evidence of the agreement, who it was between, and the obligations under the contract. Then detail the terms that it is alleged that the Defendant breached. The loss and damage suffered by the Claimant as a result must be included but there is no need to state issues about remoteness as this is for the Defence to raise. Finally enter a claim for interest (if required) and the remedies being sought.

As regards a tort action the formula is of course different. The parties and the facts that give rise to the duty of care should first be stated. It is not necessary to state that the Defendant owed a duty of care to the Claimant as that is inferred from the facts that are set out. Then the accident or the events that are the cause of the action should be outlined. You do not need to set out that the loss was not too remote as this is for the Defence to raise if they believe that it is an issue. Nor do you need to state that the Claimant was not contributory negligent, or that he failed to mitigate reasonably, as again this is for the defence to set out should they decide to. The cause or causes of action that are being sought should be set out and the loss or damage that is alleged due to the breach of care stated. Finally any claim for interest should be included as well as the remedies sought. An example of this is set out below.

IN THE CAMBERHEAD COUNTY COURT Claim No.CH2389

BETWEEN

" JOE SMITH Claimant" And " ANNE LOGAN Defendants"

PARTICULARS OF CLAIM

1. The Claimant is the owner of the cottage 65 Garden Grove, situated on Ladbroke Road, in Camberhead, and the owner of a Fiat car registration number F454 GHJ. The Defendant was driving along Ladbroke road in a Lancia car registration G454 FST.

2. On the 21st of December between 4.30 and 5.00 p.m. the Defendant crashed her car into the property of the Claimant. In doing so the Defendant struck the Claimants car and then hit the Claimants shed at the front of the property. The crash also caused general damage to the garden of the Claimant.

3. The events were due to the negligence of the Defendant.

PARTICULARS OF NEGLIGENCE

(a) Failing to use reasonable due care and skill in driving her car

(b) Failing to travel at a reasonable speed

(c) Failing to use the brakes or using the brakes in sufficient time to stop the car

(d) Filing to head the warnings of Mr. Smith to slow down

(d) Accordingly the Claimant contends that the event described above in paragraph 3 that the Defendant was negligent.

4. As a result of the matters set out above the Claimant has suffered loss and damage.

PARTICULARS OF DAMAGE

(i) Repairs to the Fiat Motor car £2,565

(ii) Removal and Replacement of Garden shed £745

(iii) Damage to lawn and shrubbery £90

Total £3,390

5. Further the Claimants claim interest pursuant to section 69 of the County Courts Act 1984 the sum of £3,390 from the date of the 21st of December at the rate of 8% per annum amounting to £ [ ] at the date of [ ], and then continuing until judgment or sooner payment at the rate of £0.55p per day.

AND the Clamant claimss

(1) Damages of £3,390

(2) Interest pursuant to section 69 of the County Court Act 1984

Dared this day 12th of January 2003

The Claimant believes that the facts stated in this Particular of Claims are true.

Johnny Jeeves - Partner in Smith and Smith, Solicitors for the Claimant

Defence and Counterclaim:
The Defence is of course the reply of the Defendant to the Particulars of Claim. The Counterclaim is the Defendant's claim against the Claimant. They could in theory begin a separate claim but in reality it is more convenient to set out the claim under part 20 of the CPR. There will be many times when a simple Defence without a Counterclaim is tendered. However for brevity I have included both these together here in a practical example. Note a Counterclaim is never tendered with out a Defence however; the result would be that the Defendant is taken to accept the Particulars of Claim. If a Defence includes a Counterclaim then the Defence always comes first and then the Counterclaim comes second.

A set off may also be included. This basically is a paragraph that comes at the end of the Defence and Counterclaim, but note even though it is part of the Defence it comes after the Defence and Counterclaim by convention. This is made possible by the CPR 16.6 and publicly allow the Defendant to either partially or wholly set off the amount in the Counterclaim against that sought by the Claimant.

There are some basic rules that apply to defences. In the Defence under the CPR 16.5, the Defendant must state any of the allegations in the particular of claim he denies and must state any reasons for denying an allegation of the Claimant. In addition if the intends to put forward a different version of events than the Claimant has given then these should be stated in the Defence. The Defendant must also state the allegations that he is unable to admit or deny but which he requires the Claimant to prove and finally the Defendant should state the allegations that he admits.

We shall concentrate on our practical example in setting out a Defence to the Particulars of Claim above. Firstly however the rules of a Defence to contract shall be covered. You may find it useful again to refer to the scenario in the Negotiation n section of this manual. Remember that the formulae set out are only basic guides. When setting out the Defence it is imperative that you deal with each paragraph of the Particulars of Claim in the order hat they appear. It is essential that each part of the paragraph is accepted denied or required to prove.

A Defence to a contract will usually take this structure remember that there are always three options open. Admit, deny or require to prove. Firstly the Defence would deal with the parties and the contract. It would then respond to the statement of terms of the contract, both express and implied. It would then go on to deal with the loss and damage and any issue if causation or remoteness as well. Finally it would cover interest and remedies.

As regards a Defence in negligence there again exists a different basic formula. Firstly the parties and the accident itself will be covered. Then the negligence itself and any causation would be dealt with, next the Defence would deal with issues of damage and finally interest and remedies.

The drafting of a Counterclaim is exactly like the drafting of a Particulars of Claim, except it can be more abbreviated form (for example there is no need to set out who the parties where etc. as this has already been done.)

We now come to an example of a Defence and a Counterclaim in the tort action brought my Mr. Smith. Note that the Defendant is still known as the Defendant and the Claimant as the Claimant - they do not swap tittles simply because of the Counterclaim. However it is often prudent to refer to the Claimant as the "Claimant/Part 20 Defendant" and the Defendant as the "Defendant/Part 20 Claimant" on the heading of the document.

IN THE CAMBERHEAD COUNTY COURT Claim No.CH2389

BETWEEN

"JOE SMITH Claimant"/Part 20 Defendant And "ANNE LOGAN Defendant"/Part 20 Claimant

DEFENCE AND COUNTERCLAIM:

DEFENCE

1. Paragraph 1 is admitted.

2. Except that the Claimant is required to prove the damage caused, Paragraph 2, is admitted

3. Paragraph 3 is denied. The collision occurred because the Defendant has to swerve to avoid the Claimant. The Claimant was standing in the middle of the road. The Defendant had no choice but to swerve to avoid causing injury to the Claimant.

4. Therefore the Defendant denies that she was negligent as alleged or at all or that the negligence was caused by any negligence on her part. She relies on the facts set out in paragraph 3 above.

5. The collision was caused solely by or contributed to by the Negligence of the Claimant.

PARTICULARS OF NEGLIGENCE.

(a) The Claimant was standing in the middle of the road.

(b) The Claimant failed to take any care, or reasonable care for his personal safety and the safety of other road users.

(c) Despite the repeated use of the horn by the Defendant the Claimant failed to move, or failed to sufficiently move, to avoid a collision with the car of the Defendant.

(d) The negligence of the Claimant cased the crash, as the Defendant had no other option but to swerve to avoid him

COUNTERCLAIM

7. Paragraphs1 to 5 of the Defence herein are repeated. The Defendant was the owner of the Lancia Car she was driving.

8. As a result of the aforesaid matters the Defendant has suffered loss and damage.

PARTICULARS OF DAMAGE

The Defendant who was born on the 11th of May 1978 and was aged 24 at the time of the incident suffered,

(a) A broken Ankle

(b) Lacerations to face and chest

(c) Soft tissue injury to the neck

The Defendant was taken to hospital where she was given an x ray and diagnosed as having a broke ankle. She also required three stitches to her face and is advices that there is a 40% of noticeable scarring. She has not been able to walk since the accident and her doctor's advice her it will be another 3 months before she can. As a result she has list time off work amounting to 1 month to date. She cannot return to work until she can walk again. In addition she has been given analgesics for the soft tissue injuries to her neck and still has a limited range of movement. The doctors have told her that she will nee another 2 weeks to gain her full range of movement.

PARTICULARS OF SPECIAL DAMAGGE

The Defendants lossless are set out in the schedule of loss and expense served with this Defence and Counterclaim.

9. Furthermore the Defendant claims interest on the damages, under section 69 of the County Courts Act 1984, at such rates and over such period as the Court deems just.

AND the Defendant Counterclaims,

1) Damages

2) Interest to be assessed

Dated this day 26th of January 2003

The Defendants believe that the facts stated in this Defence and Counterclaims are true.

Bill Gott

Bill Gott, Partner in Gott and Gott, Solicitors for the Defendants.

Gott, Solicitors for the Defendants of 156A Lake road, Newportshire at which the address they will accept service of the proceedings.

Principles and Rules Relating to Statements of Case:

Firstly we shall look at some general principles and rules that have application to all statements of case. Statements of case are the generic term for all the documents that we are looking at within this section, bar the witness statement and the skeleton argument. The basic definition of a statement of case is a document which a party relies on to set out its case as regards a civil action. The basis of the case will often be facts and allegations; therefore the document will mainly focus on these rather than legal and evidential issues.

A good statement of case must inform the other side of the case that is posed against them thus enabling them to know what allegations they have to prepare to answer, it must also set out the matters that are and are not in dispute, and set out the real issues of the case. It will also tie the parties to the case they have set out in advance.

At the same time it must be borne in mind that the statement of case is also a tactical instrument. The majority of civil cases will not proceed to trail and thus the statements of case may aid in bringing a quick settlement to a case, simply by the presenting the case in the strongest light possible.

Practice Direction 5 sets out some general rules as regards statements of case. Every document must be in numbered paragraphs, and all should be signed by the legal representative. Under P.D. 16 a statement of case may refer to the law, it may also give the names of witnesses that are intended to be called, and can have attached any document that is intended to be used in the case.

In addition the Queens Bench guide, the Chancery Guide and the Commercial Guide set out further guidelines, including that statements of case should be as brief and concise as possible, that the facts alleged should be set out in a chronological order, any that any matter which may take another party by surprise should be stated. In addition the statement of case should deal with the claim on a point by point basis.

It is important to be careful about the inclusion of evidence in the statements of case. All material facts should be included. However there should not be background evidence or circumstances included unless absolutely necessary.

This can be elaborated on as follows. Facts must be included. For example, that the lack of satisfactory quality of goods caused a loss of profit. Material facts should be included as well. These are those allegations of fact that are material to establish the necessary causes of action or defence. So for example, in a contract case the parties should be stated, as must the existence of the contract itself, as well as the terms that have been breached, the loss and damage caused and the knowledge of facts that put the loss within the contemplation if the parties. Be careful about including evidence that goes beyond this.

All that is stated must not be anticipatory in nature however. So it is not good practice to set out possible responses to those anticipated responses of the other party. In addition, omitting any of the relevant materials facts will mean that the statement of case will have to be amended accordingly as it is legally unsound.

It is not necessary to include complex legal arguments or points of law. In addition the evidence which proves the material facts need not be included. It may be pertinent to do so at times however to strengthen the appearance of the case, and often the art is in the correct order and conciseness of wording.

Finally every statement of case should be verified by a statement of truth and this must be signed by the party whose case it is in person, or by legal representative on their behalf. Each statement of case should also include the claim number, the court or division in which the claim is proceeding, the full a name of each party and the standing of each party. Companies should always be referred to as "limited" or "plc".

Main page:Preface,Analysis and Planning of the page
Extract 1 : Presenting the case in the best promising way with the effectual lingo
Extract 2 : Essentials of argue, defence and counterclaim
Extract 3 : Respond and justification to counterclaims
Extract 4 : Part 20 claims and Witness statement

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