Drafting:
Main page:Preface
Extract 1 : The
Skills
Extract 2 : The
Briefs
Extract 3 : Research
of the case
Extract 4 : Conference
Part 20 Claims:
A Part 20 Claim is defined as Part 20 (1) of the CPR as any claim other than a claim by a Claimant against a Defendant and it includes a Counterclaim and a claim by the Defendant against a person whether or not for contribution or indemnity or some other remedy. We have already looked at Counterclaims, what will follow is an example of a Part 20 claim in our scenario
A Defendant may join a person as a Part 20 Defendant in two main circumstances, Firstly, when seeking an indemnity or contribution against the claim. An indemnity is simply an obligation to reimburse someone for expenditure or loss, and a contribution a partial indemnity, and secondly when there is a claim against the person arising for a relief or remedy which is substantially the same as that which is claimed by the Claimant and arises out of the same facts.
Three main scenarios are usual. The Defendant alleges that the person is liable in tort or contract for the action by the Claimant - this will be a claim for an indemnity or a contribution. Secondly when the Defendant is claiming a contractual indemnity against the party that agreed to indemnify him against liabilities in given situations. The Defendant does not claim that the person has incurred liability to the Claimant, but claims that the person was in breach of a contractual or tortuous duty solely owed to the Defendant, and that it was that which caused the liability as regards the Claimant. Finally where there is a claim against the person irregardless of whether the Defendant is found liable of the Claimant - this can only be a claim for damages.
The Part 20 claim should state the nature of the claim by the Claimant against the Defendant and will sometimes indicate the nature of the Defence against the Claimant. It should also state the remedy sought by the Defendant against the third party.
Below is an example in our scenario. Here the Defendant believes that the servicing of the brakes was not carried out properly and that was a contributing factor to the accident.
IN THE CAMBERHEAD COUNTY COURT Claim No.CH2389
BETWEEN
"JOE SMITH Claimant" And "ANNE LOGAN Defendant/Part20 Claimant And Part 20 Defendant"
JACKS SPARES AND REAPAIRS Ltd
PARTICULARS OF PART 20 CLAIM
1. This claim has been brought by the Claimant Mr. Smith is the owner against the Defendant/Part 20 Claimant Mrs. Logan. In it Mr. Smith claims against Mrs. Logan for damage sustained of his property when the car that Mrs. Logan was driving crashed into his property on the 21st December 2002. Mr. Smith alleges that the accident was due to the negligence of Mrs. Logan, as appears in the Particulars of Claim, a copy of which is served with this Part 20 claim.
2. Mrs. Logan denies that she is liable to Mr. Smith on the grounds set out in the Defence which is also supplied with this Part 20 Claim. These Particulars of Claim set out the claim by Mrs. Logan against the Part 20 Defendant Jacks Spares and Repairs Ltd.
3. On the 11th of December the Jacks Repairs and Spares agreed with Mrs. Logan in person at their premises on Wood Lane to carry out a "Gold Service" on her Lancia registration F454 FST. This service included a brakes service.
4. It was an implied term of the agreement that the work would be carried out with reasonable service care and skill.
5. On the 19th of December Jacks Spares and Repairs carried out the service and Mrs. Logan picked up the car form the garage in Wood Lane. Mrs. Logan paid £344 in consideration for this work. In the course of the service they fully overhauled and replaced the brake system on the car.
6. Mrs. Logan's accident was caused or contributed to by the failure of the breaks on Mrs. Logan's car. The brakes did not respond properly when applied. Therefore the failure to carry out the work, in accordance with the implied term set out above, with the lack of due care and skill by Jacks Repairs and Services caused or contributed to the accident.
PARTICULARS OF NEGLIGENCE
(a) Failing to carry out the service on Mrs. Logan's car in a safe and workmanlike manner
(b) Failing to check that the work carried out on Mrs. Logan car had been properly, or failing to check the work adequately.
(c) Allowing Mrs. Logan to drive her car away when it was not safe or roadway.
As a result of the matters set out above Mrs. Logan has suffered loss and damage.
PARTICULARS OF DAMAGE
(i) Repairs to the Lancia car £3,115
(ii)Physical injury including a broken ankle and lacerations £ As the court sees fit
(iii)Loss of amenity £ As the court sees fit
7. Further Mrs. Logan claims interest pursuant to section
35A of the Supreme Court Act 1981 on the damages found to
be due to the Defendant at such rate and for such period
as the Court thinks fit.
AND Mrs. Logan claims:
(1) An indemnity or contribution in respect of
(a) Mr. Smith's claim
(b) Any costs which Mrs. Logan may be ordered to pay Mr.
Smith.
(c) Any costs incurred by Mrs. Logan in defending Mr. Smith's
claim.
(2) Damages
(3) Interest pursuant to section 35A of the Supreme Court Act 1981 to be assessed.
Dared this day 15th of February 2003
The Defendant believes that the facts stated in this Part 20 Claim 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.
Witness Statement:
We shall now look at the witness statement. Written evidence for the use a trail will take the form of a witness statement which will stand as the witnesses evidence in chief unless the court orders otherwise. An affidavit, which is essentially the same in content as a witness statement, must be used in certain circumstances. The essential difference is that an affidavit is sworn whereas a witness statement only includes a statement of truth.
There are numerous rules prescribed by Practice Direction 32. The witness statement /affidavit must have a full case heading including the court claim number and the parties. In the top right of the document there must be paced the name of the party on whose behalf it is made, the initials and surname of the witness, the number of the statement relation to that witness, the identifying initials and number of each exhibit refereed to and that the date that the witness statement or affidavit was made or sworn.
The document must be in the first person.
It must be in the own words of the witness,
As far as practically possible the witness statement must
also give the full name and address of the witness, whilst
an affidavit would state "I DOUG GREEN, of ………. STATE
ON OATH. The witness must give his occupation, or if he
has not got one then he must supply a description. If the
witness is a party to the proceedings or an employee of
a party to the proceedings he must state so. The witness
statement/affidavit must be spilt into numbered paragraphs.
All numbers should be displayed in figures. The usual way
to start the witness statement/affidavit is for the witness
to state that the facts included in this statement are set
out within my own knowledge, except where indicated to the
contrary. It is impetrative that the witness states which
facts are outside his own personal knowledge, for example
" I was told by Mr. Jones and believe that …"
Exhibits in witness statement are usually referred to "
I refer to the (description of the exhibit) marked DG4 (for
example)." The reference to the exhibit will comprise
of the witnesses initials and then the exhibit number.
Under rule 704 of the Code of Conduct counsel must not devise facts which will assist in advancing the lay client's case, and must not contain statements that he knows nit to be true. In drafting the witness statement you should ensure that the evidence included is admissible, relevant, clearly expressed, and complete and set out in logical way. For any witness statement for use at trial the statement must be presented in a factual and objective way. There must never be any element of embellishment; the only element of leeway is in terms of presentation. However in support of interim applications, for example for an injunction, then the statement can be written in a more persuasive manner than a statement for trail.
Before going on to draft the evidence you need to ascertain several things. Firstly you must ensure that you are clear on what needs to be proved to obtain your clients objectives or for him to win his case. It is far more difficult to present a clear case if you include irrelevancies which cloud the rest of the information included.
Then you should ascertain what the witness needs to comment on to prove his case, and how this should be expressed. You should not input the technical legal language that they would not usually use. Try and maintain clarity and where possible use the witnesses own words where it is inappropriate to do so. If the witness is inarticulate in places it is fine to change the wording of his statement to present it in a more coherent way, as long as you don't invent extra facts or embellish. Finally you should be clear in what order you are going to organise the information of the witness. Te story of the witness should be told in an orderly and clear way. It should be coherent and presentable. A person reading the statement with no knowledge of the case should be able to gain a good understanding of the witness's evidence from reading the statement.
Below is a witness statement form Mr. Smith detailing the facts of the accident that he witnessed.
Made on Behalf of the
Applicant
Witness J.Smith
1st Statement of Witness
Exhibits: None
Dated 20 Feb 2003
IN THE CAMBERHEAD COUNTY COURT Claim No.CH2389
BETWEEN
"JOE SMITH Claimant" And "ANNE LOGAN Defendants"
WITNESS STATEMENT OF JOE SMITH
I, JOE SMITH live at 65 Garden Grove, situated on Ladbroke Road, in Camberhead, and make this statement in connection with the accident that happened on the 21st of December 2002. The contents of this statement are within my own knowledge.
1. I am a retired psychologist. I am the owner of, and reside at 65 Garden Grove, situated on Ladbroke Road, in Camberhead, and I am the owner of a Fiat car registration number F454 GHJ which h I park outside. The Defendant was driving along Ladbroke road in a Lancia car registration G454 FST.
2. On the 21st of December, at about 4.40 pm I was walking back along Ladbroke Road from a trip to the shops. I was nearing the front door of my house when n I heard the sound of a speeding car in the distance. I now this to be the car driven by a person I now know as Mrs. Logan, the Defendant in this action. The car was a green Lancia, and I now know the registration number F454 FST.
3. I could not see the car at the time, only hear it. My house is at the end of a bend in the road. I am very conscious of the high speeds that cars seem to travel down the road. It is a residential area and as such the speed limit is 30mph. Often cars speed down the reread with no thought for those using the road or the footpath. Especially when they hurtle around the bend at speed.
4. I was stood on the footpath when I heard the car. I then began to wave my arms at the oncoming car. I did not stand in the middle of the road, nor did I step out into the road at all. To have done so when a car traveling at that sped would have probably been fatal. At all times I remained on the footpath until the car came towards me.
5. The driver of the car seemed to acknowledge my presence and applied the brakes. However the car had already began to lose control around the bend. The car then span round about 90 degrees. At this point I jumped out into the middle of the road as I feared that the car was going to hit me. The car then carried across my garden. Firstly it smashed into my car, causing substantial damage to the front of the car, then rebounding into it and ending up only being stopped by my shed which it completely destroyed. The speed at which the car was traveling also meant that it tore up a substantial part of may garden, including the lawn and some shrubbery, as it crossed it.
6. I was not surprised that the collision was so serious. I would estimate that the car was traveling at over 40mph. I then opened the door of the car to see that the driver, Mrs. Logan was badly injured. I then went in to the house and rang an ambulance for her.
7. The contents of
this statement are true to the best of the knowledge and
belief.
Signed: Joe Smith Dated 20th February 2003
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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