Legal Drafting (Disputes) Flashcards
(13 cards)
How should you deal with definitions in a defence?
Include a first paragraph stating:
“The Defendant adopts the definitions used in the Particulars of Claim.”
Paragraphs 1 - 5 on the particualrs are correct
Paragraphs 6 - 8 are incorrect.
How should you respond in the defence?
- Paragraphs 1 - 5 are admitted.
- Paragraphs 6 and 8 are denied.
(i) Reason 1 ….
(ii) Reason 2….
If your defence is that the claimant is not entitled to relief, how should you close your defence before moving on to the counterclaim?
For example…
The Claimants are not entitled to relief sought or to any relief.
When drafting a counterclaim as part of a defence and counterclaim, what should the first paragraph be?
Provide an example
Repeat the defence admissions before dealing with your counterclaim to the other particulars paragraphs.
For example…
“The Defendants repeat Paragraphs 1-5 of their Defence.”
You are drafting a defence and counterclaim. In your counterclaim, how do you draft interest for a liquidated amount?
For example, the Defendants have suffered a loss amounting to £25,000,
The Defendant is entitled to interest on the outstanding instalment under clause [ ] of the Contract at the rate of [ ] % per annum from [date debt was due] until [date defence was issued] amounting to [ ] and continuing at a daily rate of [ ] until judgment or sooner payment.
You are drafting the particulars of claim.
What should the ‘parties’ section include?
- Name of C and D
- Nature of their business
- Any connected entities
For example….
“The Defendant was at all material times [SET OUT RELEVANT DETAILS OF, AND BACKGROUND TO, THE DEFENDANT] and is engaged in [SET OUT THE NATURE OF THE DEFENDANT’S BUSINESS AND INTRODUCE ANY OTHER RELEVANT INDIVIDUALS OR ENTITIES INVOLVED WITH THE DEFENDANT]….”
You are drafting the particulars of claim for a contractual debt claim.
What should the ‘contract’ section include?
- How the contract was made
- Date
- Summary of subject matter
- Sum agreed
For example….
“By a contract [SPECIFY WHETHER ORAL OR IN WRITING AND, IF ORAL, BETWEEN WHOM IT WAS MADE AND WHEN, WHERE, AND HOW] dated [DATE] between the Claimant and the Defendant for the [SUMMARY OF THE SUBJECT MATTER OF CONTRACT], the Claimant agreed [SET OUT THE PROMISE] and the Defendant agreed [SET OUT THE PROMISE TO PAY] to pay the sum of [SPECIFY THE PRICE].
You are drafting the particulars of claim for a contractual debt claim.
Having set out the parties and the contract, what should follow?
The Terms of the Contract
“The contract contained the following express terms:
… On a true construction of the contract, the Defendant was obliged to [STATE ANY PARTICULAR CONSTRUCTION CONTENDED FOR].”
You are drafting the particulars of claim for a contractual debt claim.
Once you have set the terms of the contract out, what three sections should you include before the particulars of loss?
- Claimant’s performance of the contract
- Payment due date
- Defendant’s failure to pay
For example…
“The Claimant therefore claims the [outstanding] sum of £[AMOUNT DUE] owed by the Defendant to the Claimant.]”
You are drafting the particulars of claim for a contractual debt claim.
Once you have set the first section (parties, contract, terms, performance, payment date and failure to pay) what comes next?
Central heading:
“PARTICULARS OF LOSS”
This has the following sub headings:
- Set out particulars of damage
- Claim for interest
- Prayer
- Statement of Truth
You are drafting the particulars of claim for a contractual debt claim.
What are the options for the claim for interest section?
Either…
(a) Contract Rate
(b) County Court Rate
(c) High Court (SCA) Rate
for example.…
“and continuing at the rate of statutory interest under section 35A of the Senior Courts Act 1981.”
(d) Late Payment of Commercial Debts (Interest) Act 1998
You are drafting the particulars of claim
How do you include the prayer?
Stop the numbering
AND THE CLAIMANT CLAIMS:
(1) The sum of £[AMOUNT].
(2) [Contractual OR statutory] interest as set out at paragraph []
(3)…..
(4)…..
