Legal Drafting (Disputes) Flashcards
(25 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)…..
You are drafting a letter of claim.
How should you open the letter?
We act for [Insert Company], registered office at [Insert Address].
Then provide details of the case…..
You are drafting a letter of claim.
What should you do if you are referring to documents?
Documents need to be attached to the letter of claim
Write (copy enclosed) in the main body. Then at the end of the document, under the closing signature, write a list of the documents entitled ‘Enc’
For example…
On 2 July, Preece entered into a contract with you for the supply by you of stationery (the Contract, copy enclosed) over a 3-year period.
…
Yours faithfully,
Briggs & Richmond LLP
Enc.
- Contract between you and Preece dated 2 July [year]
- Practice Direction – Pre-action Conduct and Protocols
You are drafting a letter of claim.
How should you incorporate the pre-action protocol?
“We consider that this letter complies with the ‘Practice Direction – Pre-action Conduct and Protocols’ which sets out the steps the court would normally expect parties to take before commencing proceedings in relation to this matter. The documents we have enclosed are the key documents relevant to the issues in dispute.”
You are drafting a letter of claim.
Do you need to specify a timeframe for the recipient to respond? If so, how long?
Yes. Usually 14 days.
“Please respond within the next 14 days. If no response is received in that time period, [X] intends to commence proceedings without further notice.”
You are drafting particulars of claim.
You are claiming interest generally.
What statute applies, and what do you draft?
The Claimant claims interest on such damages as are awarded to it pursuant to section 35A Senior Courts Act 1981, at such rate and for such period as the court thinks fit.
You are drafting a particulars of claim.
What are the….
- 2 headings capitalised and central; and
- Final heading justified to the right
1…………
2………….
3………….
PARTICULARS OF BREACH
4………….
5………….
PARTICULARS OF LOSS AND DAMAGE
- …………
- …………
AND THE CLAIMANT CLAIMS
(1)
(2)
You are draftng a particulars of claim
The Operations Director is going to sign the statement of truth.
How should this appear?
The Claimant believes that the facts stated in these Particulars of Claim are true. The Claimant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the Claimant to sign this statement.
Signed:……..
Full name: ……
Position or office held: Operations Director Date:…….
You are drafting a defence.
Prior to the statement of truth, what should your final paragraph state?
General denial:
“In the circumstances the Claimant is not entitled to the relief sought or any relief”
You are drafting a counterclaim
What should the first paragraph of the counterclaim section state?
“The Defendant repeats paragraphs [x] - [x] of its Defence.”
For example….
DEFENCE
1……..
2…….
3…….
COUNTERCLAIM
4.The Defendant repeats paragraphs 1-3 of its Defence.
5…….
You are drafting a particulars of claim relating to a commercial debt
If there was no contractual interest due, how would you claim statutory interest?
Claim statutory interest under the Late Payment of Commercial Debts (Interest) Act 1988 because this is a commercial debt (rather than the Senior Courts Act 1981).
You are drafting a Part 18 Request.
Specify the structure and content.
Include the standard template including court, claim number, parties and that it is a CPR Part 18 Request
INTRODUCTION
- This is a request pursuant to Part 18 of the Civil Procedure Rules.
- This request is made by the [C/D] to the [C/D].
- This request relates to the [Defence] served on [X]/
- This request is made and served on [Date[ and the response is expected by [Date]
REQUEST
- [Provide context]
- Request 1:…….
- Request 2: …..
Date:…….
You are drafting a reply to a Part 18 Request.
Specify the structure and content.
Paste the request and reply directly below in bold:
- Request 1: …….
Response 1: ………
- Request 2: …….
Response 2: ………
Close with a statement of truth.
