Statements of case Flashcards

Question

What should POC include in claims re possession, occupation, use or enjoyment of land? | Specific contents

Answer 1

Identify land and make clear whether it includes residential premises

Answer 2

* Written = agreement attached * Oral = words spoken (by whom, when where) * Conduct = conduct relied on and by whom, when and where acts were done

Answer 3

* Idea is to **compensate for delay in receiving money due to them** * Legal basis either 1) set out in contract or 2) statutory right to interest

Answer 4

1. Calculating **exact amount of interest** claimed; used when making specified claim 2. Claiming (pleading) **interest generally**; used when making unspecified claim and court has decision re amount of damages (loss of goodwill/reputation; loss of future earnings/profits; any damages where remoteness is issue)

Answer 5

* Applicable % rate * Dates from/to which interest being claimed * Total amount claimed up to issue of claim form; and * Daily rate of interest thereafter

Answer 6

1. **Treat 2 claims separately** - work out interest for specified claim and making general claim for unspecified claim 2. **Two claims together** - come to total which is an unspecified claim (so treat whole claim as unspecified claim)

Answer 7

Court has discretion re whether to award interest and how much from date of cause of action until judgement

Answer 8

* PI claims = where damages over £200 awarded (unless special reasons for not) * Debt claims = if D pays whole debt during proceedings

Answer 9

1. Intoduction of each party 2. Set out relevant duty (e.g. by contract) 3. Specify breach (e.g. in breach of contract, D did not pay) 4. Plead causation (e.g. as a result of breach, C suffered loss) 5. Set out loss (e.g. C suffers sum of £X)

Answer 10

* Prayer = summary of relief = summary of remedies sought by C * POC closes with the prayer ## Footnote Court and D have quick means to see what C actually wants

Answer 11

React to every point/allegation in POC and state full details of D's own case | Each allegation in POC dealt with individually

Answer 12

* Structure naturally follows how C has pleaded claim and additional defence points being incorporated * Must include: D's address for service and where D resides/carries on business if claim form does not contain information

Answer 13

1. Admit allegation 2. Deny allegation 3. Require proof of allegation

Answer 14

* Should admit anything non-disputed/non-controversial - if they do not can be cost consequences for not admitting when should have * For C - they will not have to bring any further evidence to support ## Footnote E.g. In a dispute about a contractual debt, it may be that the defendant agrees that it entered into the contract and that it owed the duties under the contract which the claimant alleges it owed, despite the defendant not agreeing that it owes any money under the contract. The D should admit the existence of the contract and its terms as pleaded by the claimant.

Answer 15

* No - if it denies it must give reasons - if it wishes to put forward a different versio nof events it must state this version in defence * For C - denial means they must provde allegation

Answer 16

Where they cannot admit nor deny because alleged fact is something D does not know | Must ask what direct knowledge of facts D could have had ## Footnote E.g. In a breach of contract claim, the claimant might allege it has suffered certain losses as a result of the breach. The defendant might: * deny breach as it knows it did not breach the contract, and * require the claimant to prove the amount of the alleged loss and damage, as the defendant will have no knowledge about such matters itself.

Answer 17

D is **deemed to admit it** unless it has set out own case re allegation

Answer 18

The amount claimed is not admitted unless D **specifically** admits it

Answer 19

No - will only be a defence to the claim

Answer 20

Why it disputes it and its own estimate

Answer 21

1. D can agree to adopt definitions of defined terms in POC 2. Can admit the introduction of each party 3. Allegations of POC will be admitted, denied or put to proof 4. General denial (denies entitlement of C to all/part of sum being claimed)

Answer 22

* Purpose is to answer 'new points' raised in defence * Is an optional statement of case from C

Answer 23

With the directions questionnaire

Answer 24

* Reply is the last statement of case * Permission of court needed to file any statement of case after reply

Answer 25

Part 18 Request (for further information) - does not have to be based on matters in SOC

Answer 26

Serving written request on other party - confined to reasonably necessary/proportionate matters - **stating date for a response** (reasonable time to respond - 14 days)

Answer 27

Matters which are **reasonably proportionate and necessary** to enable party seeking it to **prepare its own case/understand case it has to meet** ## Footnote Examples of why a party wishes to request further information include: * To obtain admissions (although this is rare) * To obtain information which may reveal weaknesses in the other party’s case * To obtain information about facts which the other party needs to prove to make good their case * To acquire advance details of what a witness may say before exchange of witness statements. * To obtain clarification of the other party’s case (a common and useful function as it limits the other party’s ability to depart from it later) * To narrow the issues between the parties to save time and costs *

Answer 28

Evidence that C does not need at this stage

Answer 29

Yes, **counts as part of their defence** going forwards - so must be verified by statement of truth

Answer 30

1. **Responding** - written, signed - sent to other party and filed at court 2. **Objecting** - within timeframe set out in request and reasons given

Answer 31

Only once party has not responded/has objected to providing response to Part 18 request - made via interim application

Answer 32

* That it not be used for any purpose other than current proceedings * Can be restricted whether information given voluntarily or pursuant to order

Answer 33

Once party has not responded after 14 days have passed

Answer 34

* A separate claim to main claim made at same time as D files its defence * SOC: the counterclaim, a defence to it (from C), and a reply in response to defence ## Footnote Like any other claim a counterclaim must be based on case analysis confirming that a viable cause of action exists: D must establish duty, breach, causation, loss

Answer 35

Permission of court

Answer 36

It could do, but more convenient to combine and will usually be pursued in same proceedings and dealt with under same claim number

Answer 37

Does not have to be but parties must be **suing in same capacity** ## Footnote If court does not think counterclaim should be heard with main - can order it be struck out or heard separately

Answer 38

Should form a single document with defence i.e. will follow on directly and be clearly labelled as counterclaim | Document is then entitled 'Defence and Counterclaim'. ## Footnote Is essentially a POC by another name - must therefore comply with the rules on POC (contain the four necessary elements of a claim)

Answer 39

* A defence that may be a partial/complete defence to main claim * Effect = extinguishes any claim up to same amount against D ## Footnote C brings £20,000 claim, D makes £10,000 counterclaim and they both win = D pays £10,000 to C and other £10,000 extinguished

Answer 40

1. No judgement in favour of C, judgement simply entered for D against C 2. Set off not triggered and judgement simply entered against D for full amount claimed

Answer 41

* SoGA = seller sues for price of goods sold, buyer set off for breach of implied terms * Defective services = claim made for price of services, D set off for damages for poor services * Equitable set-off = court considers such close connection between two transactions that it would be manifestly unjust to allow enforcement of one claim without considering cross-claim

Answer 42

* Within 14 days after service of counterclaim (usual rules for defences) * Failure = judgement in default might be entered against D ## Footnote A defence to a counterclaim is very similar to a 'normal' defence. Its **contents must therefore comply with the usual rules in relation to defences** (CPR 16.5 and 16 PD).

Answer 43

There is not a requirement

Answer 44

The reply | I.e. 'Reply and Defence to Counterclaim'

Answer 45

Where it is directly concerned with or closely connected to the existing claim ## Footnote CPR 17 Amending statements of case CPR 19 Addition and substitution of parties CPR 20 Counterclaims and other additional claims

Answer 46

* Additional claim = any claim other than claim brought by C against D * Counterclaim (type of additional claim) = claim brought by D in response to C's claim (and included in same proceedings as D's claim)

Answer 47

* Counterclaim by D against C * Counterclaim by D against C and other person * Additional claim by D against person already party to proceedings (contribution, indemnity, or something else) Above 3 all have own rules, everything below will be other additional claims... * Additional claim by D against person not already party to proceedings claiming contribution, indemnity or some other remedy * Additional claim being made by party which has itself been joined to main proceedings

Answer 48

A claim by the original C (even if they are adding a further claim to existing claim)

Answer 49

* **Contribution** = right of someone to recover from a TP all/part of amount which he himself liable to pay; may arise in tort, contract or under Civil Liability Contribution * **Indemnity** = right of someone to recover from TP whole amount which he himself liable to pay; will often arise from a contract

Answer 50

The party pursuing the claim for contribution / indemnity is seeking to recover something which it is **itself obliged to pay to someone else** ## Footnote I.e. can still be found liable in original claim, but will have recourse against other party via contribution/indemnity

Answer 51

Yes - so if a party is served with an additional claim they must file a defence in accordance with usual rules

Answer 52

* Must be some **connection** between C and TP (otherwise D would issue entirely separate action against TP) * **Court's permission required** ## Footnote The D, a homeowner, engages a builder, the C, and an architect to carry out work to her home. D is unsatisfied with the work and does not pay the builder C. * C brings a claim against the D for the payment of its invoice. * D (homeowner) might bring claim in same proceedings against C (claimant) and third party (architect) - may be that both C and architect involved in problem leading to unsatisfactory work; connection between two parties

Answer 53

* Must be other existing parties **already involved** (i.e. more than a simple 'one C against one D' claim; must have been made against more than one D at outset) * A **legal basis** on which D can base claim is needed (e.g. DOC, contractual) * D must file a **contribution notice** with court and serve that notice on other party

Answer 54

* D needs a **legal basis** on which they can base claim against TP * **Do not involve C**; purely between D and TP (but many issues will depend upon what happens in main claim between C and D) ## Footnote C enters into a contract with D to invest £500,000 in D’s business. C was induced to enter into the contract with D by relying on: * Representations made by D about the financial status of its business (which turned out to be untrue); and * Comments made in a pre-contract meeting by an accountant, E, known to C and who also advises D on its finances. C advances the £500,000 to D which is then dissipated and lost. * C sues D for the recovery of the £500,000 in a misrepresentation claim, based on D’s actions inducing C to enter into the contract. * D alleges that when making its representations, it relied on the advice and comments of E, its financial adviser, and alleges that E owed D a duty of care in these circumstances. * D can protect its position in the event that it is ordered to pay the £500,000 back to C in C’s misrepresentation claim by bringing an additional claim against E for a contribution or indemnity recouping anything D is ordered to pay. This additional claim will be based on the duty of care E owed to D, which was breached, causing the loss (the damages D had to pay to C).

Answer 55

Where there is no connection between C and TP ## Footnote For counterclaim - must be some connection between C and TP e.g. same building project

Answer 56

* Classic (D>C) = no, if filed at same time as defence * Counterclaim against person other than C = yes always required

Answer 57

If * Served at same time as/with defence; or * If claim against a party added to claim later (by C), within 28 days after that party files its defence | Recall - done through contribution notice!

Answer 58

If additional claim issued before/same time as defence is filed | Permission otherwise needed

Answer 59

N211 claim form - similar to normal N1 form but more room for details of all parties to be included

Answer 60

* A response pack; and * A copy of every statement of case and any other documents the court directs ## Footnote A copy of the additional claim form must also be served on every existing party

Answer 61

Using normal interim application procedure

Answer 62

## Footnote To remember: * Standard counterclaim won't need permission but counterclaims against person other than C will - require some connection * Claims for contribution/indemnity from existing party done through contribution notice and do not need permission if filed and served at same time as defence/within 28 days after party files defence if that party is added to claim later * Both claims for contribution/indemnity require some legal basis (whether already party or not) * **Anything else will include all other types of additional claims** including claim for contribution/indemnity from party not party to proceedings - for which permission not required if issued before/same time as defence is filed

Answer 63

A party to the original proceedings if he was not already a party

Answer 64

Where D to an additional claim files a defence (other than to counterclaim)

Answer 65

* Cs and Ds in original claim = referred to as such * Additional parties = referred to in accordance with order in which they joined e.g. third party, fourth party ## Footnote *Example: The defendant makes a counterclaim against the claimant and an additional new party. The claimant will be referred to as the claimant in the counterclaim (despite being in the position of defendant to the counterclaim) and the ‘new’ party will be referred to as the ‘Third Party’ (20 PD 7.4(c)).*

Answer 66

A party served with an additional claim must file a defence in accordance with usual rules

Answer 67

D can apply for default judgement (As usual)

Answer 68

No - instead they are **deemed to admit claim and will be bound** by the judgement/decision given at trial of main claim

Answer 69

An acknowledgement of service and a response back

Answer 70

1. General amendments (CPR 17) 2. Amendments which remove, add or substitute a party (CPR 19) ## Footnote Following considers CPR 17 until it doesn't

Answer 71

A statement of truth (unless court orders otherwise)

Answer 72

If statements of case are amended at any time **before** it is served ## Footnote Largely limited to those in period between issue and service and amendments to other statements of case (e.g. POC) prior to service

Answer 73

Any amendment that alters parties involved | Court retains power to disallow

Answer 74

* With written consent of all other existing parties **or** with permission from the court (who can still disallow) * Party making amendment bears costs

Answer 75

1. File application notice with court with copy of proposed amended statement of case 2. If permission given - amended statements of case should be filed by applicant within 14 days of order granting amendment and copy of amended SOC be served on every party

Answer 76

Can be through written submissions where all parties consent

Answer 77

* Generally - regard to overriding objective * Application to amend **defence** will be refused if clear proposed amendment has no prospect of success (e.g. implausible version of facts)

Answer 78

Balance between injustice to a) applicant if amendment refused and b) opposing party if permitted

Answer 79

1. If late amendment does not result from **late disclosure/new evidence** - less likely to accept 2. Heavy onus on party seeking amendment to justify own position **and** other parties in litigation 3. Parties must satisfy full requirements of **preparing a proper pleading** (AKA cannot say deficiencies can be rectified by way of further info/evidence)

Answer 80

Amendment is **desirable**

Answer 81

1. Desirable to add a new party to **resolve all matters in dispute** 2. Issue involving new party and existing party connected to matters in proceedings and is **desirable to add new party so court can resolve issue**

Answer 82

Where additional claim may **impact issues in main claim** (and potentially leave party exposed) ## Footnote C sues D for misrepresentation and the loss of a £500,000 investment C made in D’s business. * At the trial, C fails in its claim against D, with the judgement laying the blame against E. * As C had not joined E into the main action as a defendant to C’s claim, the judge could not make a judgement in that main claim against E in favour of C. In this situation, even though E is to blame, C recovers nothing.

Answer 83

No - consent must be filed at court

Answer 84

Can instead be added as a D

Answer 85

**Always** unless **claim form** has not been served

Answer 86

A separate action which is commenced on same date as original action | ?

Answer 87

Such amendments will not be allowed | Subject to exceptions!

Answer 88

1. Where court directs **limitation period will not apply in a personal injury action** (where disapplying time limit would be equitable) 2. The new cause of action is **an original set-off/counterclaim** 3. The new cause of action arises out of **(substantially) same facts already in issue** ## Footnote For 1 For example, the cause or significance of personal injuries or disease caused by someone’s negligence might not be apparent within the standard 3 year limitation period for personal injury claims and this could be a reason for the court to exercise its discretion under this provision in order to do justice. If an action on some other basis was already underway, it could be amended under this provision to add this new claim after the limitation period had expired.

Answer 89

1. Limitation period was current when proceedings were actually started 2. The addition or substitution is '**necessary**'

Answer 90

1. New party is to be substituted for one that was **named in mistake** for the new party; or 2. The claim **cannot properly be carried on** against original party unless new party is added or substituted; or 3. Original party has died/had a bankruptcy order made against him and **interest or liability has passed to new party**

Answer 91

* **Mistake in name** - there is no reasonable doubt re identity of party (e.g. form served on D despite wrong name) = **amendment might be allowed** * **Mistake in identity** - result in entirely new person becoming party (e.g. starts proceedings against wrong D) = **amendment not allowed**

Answer 92

Has the intended defendant been identified in the statements of case ‘by reference to a **description more or less specific to the particular case**’? * Yes = amendment may be permitted * No = court cannot permit ## Footnote E.g. The claimant is injured in a car accident caused by the negligent driver of a VW Polo registration Y476 LNY. The driver was **Darren Boardman** – he should be the defendant. The registered keeper of the vehicle is **Sarah Boardman**, Darren's wife. She was not in any way involved in the accident. 1. C nams Daryl (not Darren) in SOC = genuine mistake causing no reasonable doubt as to identity of party (court has power) 2. C names Sarah as driver but has described driver of specific car and specific time = adequately described (court has power) 3. C names Sarah as registered keeper of vehicle = not adequately described (court has no power)

Answer 93

No, unless court orders othersie

Answer 94

## Footnote Special rules: * Re general amendments = new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim * Re parties = mistake of name/identity

Answer 95

* Contain appropriate endorsement * Verified by statement of truth