Key Points for Drafting Flashcards
(21 cards)
Non- Defendant Bad Character - notice to introduce
State relevant provisions and wording
Explain the matter in issue (why would it need introducing)
Set out what would need proving (eg for probative value = factors under s100(3)
Bad Character - non-Defendant
What are the factors for determining probative value or evidence
a) nature of events
b) number
c) when
d) similarity
e) it might suggest the person is also responsible for the misconduct here
Defence DR - what must the last point of the defence statement be?
General denial
‘In the circumstances, the Defendant is not entitled relief sought or any relief’
Statement of Truth
The claimant believes that the facts stated in this x are true
I understand that proceedings for contempt…may be brought against he who makes a false statement verified by SOT without honest belief in its truth
I am duly authorised by D to sign this statement
What is it common to require proof for in a defence?
Losses
What might you need to require proof for in a defence instead of deny
Causation - unless you can deny and put forward an alternative cause
POC/Defence Statement of Truth: who should sign for a company
Someone who holds a senior position in the company: MD, Director, founder, owner
POC - How should you start a POC
At all material times, the claimant was …. and the defendant was ……
Rough structure for a POC
Summary of key and material facts: the C entered into a contract with D to supple/ sell/ buy / hire …..
express or implied terms of the contract?
Duty
Breach
Causation
Loss
Interest
POC: what should you include if the claim is Personal Injury
Claimant’s DOB, injury details, past/future expenses, medical records
How to address interest on a POC
if not specified: Interest under S69 County Courts Act 1984 at such rate for such period the court thinks fit (or S35A Senior Courts Act if higher court)
can also put in a rate (annual statutory rate of 8% eg)
How to address loss in POC
As a result of the breaches set out above, the Claimant has suffered loss and damage.
Title: Particulars of loss and damage
set out all the costs incurred/ losses with a total
then do another clause: AND THE CLAIMANT CLAIMS: damages referred to above and
interest
Claim Form: initial structure
Claimant name and address
brief details: concise, single statement of nature of claim
Remedy sought
Claim value: specified - state amount
unspecified: I expect to recover more than X or no more than X, I cannot say
Preferred court
D’s full service address
POC if applicable (then sot)
Claimant’s legal rep
Claim Form DR: what would you need to include
who acting for and address
summary of issues, with dates, defined terms, causation if needed
remedy - offer to settle, then if not proceedings + costs of litigation
14 days to respond and consequences of not
statement of compliance with Practice Direction – Pre-action Conduct and Protocols
enclosed docs - contract. agreements, emails, letters etc
address of firm
General plea for interest?
The Claimant is entitled to interest on such damages as are awarded to it pursuant to section 35A of the Senior Courts Act 1981 at such rate and for such period as the Court thinks fit.
calder bank offer
- writing
-Written without prejudice save as to costs – cannot be referred to the judge until costs are considered after trial - Need not comply with part 36
- Specific consequences of part 36 do not apply, but the court will have regard to them when exercising its discretion on costs
when is r v hanson used (bad character)
three-stage test in determining pROPENSITY applications:
a. Do conviction(s) establish a propensity to commit offences of the kind charged?
b. does the propensity make it more likely that the defendant committed the crime charged?
c. Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))?
Bad character - important explanatory evidence - how to argue it
without it, the jury or court would find it impossible/difficult to understand other evidence
value is substantial for understanding the case
matter in issue - bad character evidence - how to argue
Substantial probative value
bad character - correcting a false impression - argue
express or implied assertion that is false / misleading during interview/trial/witness
must have probative value in correcting
Note D can withdraw
