No Dodging The Draft! (part 1)

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Well, Bar School is finished, and clearly, I’ve neglected to update my blog during the whole time I was there. However, I’m quite confident that any Bar-hopefuls reading this will soon be able to empathise!

Since my last post, I have undergone a total of six pupillage interviews – including a second-round interview, with another second-rounder in the pipeline and two more chambers still to hear back from. I plan to do a post about my interview experience soon. Who knows… I might even have a pupillage by then!

Meanwhile, I’m somewhat sad to report that I have failed Drafting due to making a silly mistake in the final assessment, and thus, I must re-sit Drafting in August. So there will be no Call to the Bar in scorching July for me. More like nippy November (or early next year). This news came as quite a shock after scoring ‘Very Competent’ in the January mock. But it just goes to show that anything can happen when the exam pressure is on.

Drafting is an essential skill for lawyers, though I’m finding there’s no way to ‘revise’ for it as such. The revision aspect starts about two weeks prior to the assessment, when you’re told which substantive area of the law your assessment is to be based upon (e.g. promissory estoppel in the law of contract). However, whilst substantive revision is limited, there are manuals and published guides to the drafting process in general.

This post is not intended as a comprehensive introduction to the skill of legal drafting. Rather, this post assumes basic knowledge of the three following documents:

(1) Particulars of Claim;

(2) Defence;

(3) Defence and Counterclaim.

I will use this post, and the one after it, as a chance to share some tips and insight gleaned from my books. At a minimum, writing this stuff ought to help me improve, but if my words should reach across Google to assist some other deflated drafter in future, so much the better!

PARTICULARS OF CLAIM

Despite my warning that this is not a beginners’ guide, I will start on a fairly elementary note as it helps to keep things straight for me!

It must be borne in mind that a Particulars of Claim is not the same thing as a Skeleton Argument; hence, drafting particulars does not require the lawyer (or law student) to justify assertions that he or she makes by reference to statutes, case law, eyewitness or documentary evidence (etc). In fact, now is a good time to contrast the skills of drafting and opinion writing, as doing so will help make the purpose of drafting a little clearer.

Early in the life of a case, a solicitor may seek your learned opinion, e.g. to decide whether there is a good prospect of success. Thus, in advising your solicitor as to the merits of the claim, you must take everything you read, including everything the lay client has told you, with a pinch of salt. For instance, the lay client may claim that she had an “oral agreement” with a company whom she wishes to sue, but it would be quite negligent to assume this to be true just because she tells you so. You are expected to consider how the fact of this alleged oral agreement can be proved. So, you might start by asking your solicitor to take a statement from the lay client, recording the how, when and where in minute detail. If the agreement was made over the phone, you might ask for copies of phone records to try and back this up (etc). Hence, nothing should be taken for granted at this early stage. As the barrister who may end up arguing this in court, you must consider how to prove everything that needs proving.

Drafting, however, calls for a different mentality from the barrister.

Let us assume that having taken your advice, the lay client instructs her solicitor to take the matter forward. “I want my day in court!” she demands. Now comes the moment for putting a Particulars of Claim together, step-by-step, meticulously asserting all crucial facts in support of your client’s case. It may be that the lay client has only weak evidence for proving the alleged oral agreement. Nevertheless, provided she has been warned and advised at the opinion stage, and provided she is not obviously telling lies, then now is the time for poker faces. You present the alleged facts in good faith, sure that if the case ever sees the inside of a courtroom, all will be proved… even if the client’s hopes are riding on your magnificent skills of cross-examination!

OK… I’m over-simplifying! The point is: drafting just comes down to asserting (or ‘pleading’) facts/allegations needed for your client to win – no more and no less. If it’s a contract claim, don’t discuss the doctrine of consideration, but do state what each party did or promised to do. If it’s a negligent driving claim, don’t mention Nettleship v Weston, but do state that the defendant was driving his car when he collided with the claimant.

Hence, just write the right things to make the law bite, and have ye some faith that proof required will come to light!

In sum, an opinion is seen only by you, the solicitor and the lay client; it is thus a private document which may be used for reality-checking. But a Particulars of Claim is different; it is a document served on the court and the other side; it is the first document to declare: “We Mean Business!” – and if drafted well, it could persuade the other side to settle.

Having clarified the nature and purpose of the Particulars of Claim, let us now consider the steps required to draft particulars for breach of contract and negligence – two subjects commonly tested on the Bar Course.

For a breach of contract claim, before putting fingers to keyboard (or pen to paper in the exam), you should ‘fact manage’ the brief by reading and identifying information that fits snugly under each of these headings:

  1. Parties and Background;
  2. Agreement;
  3. Terms;
  4. Defendant’s Knowledge;
  5. Performance;
  6. Breach;
  7. Causation, Loss and Damage;
  8. Interest;
  9. Pre-Action Conduct;
  10. Remedies Sought.

These headings merely offer a way for you to conduct fact management. The Particulars of Claim should not be drafted with these ten headings! Nor is it expected that a Particulars of Claim will contain ten paragraphs, each dealing with just one of the above. Indeed, it will not always be necessary to plead a defendant’s alleged knowledge (#4) or failure to perform his alleged obligations (#5), and the other elements may require more than one paragraph each.

So what exactly do I mean by fact management? …

Parties and Background?

– Who are the parties? [Identify them clearly!]
– Were either or both acting in the course of a business? [If yes, say so!]
– Had the parties dealt with each other previously? [If yes, say so!]
– Has damage been caused to property? [If yes, state whose property!]

Agreement?

– Some may prefer the word ‘contract’ to ‘agreement’ – that’s fine.
– Is the exact date of agreement known? [If yes, state that date!]
– If the exact date is uncertain, state “on or about” such-and-such date.
– Was the agreement oral? [If yes, try to state the exact words used!]
– Was the agreement written? [If yes, identify all relevant documents!]
– Was agreement mixed oral/written? [If yes, clarify as much as possible]
– Is it clear what the agreement was for? [If yes, identify subject matter!]
– Was there clearly a bargain? [If yes, state what was done or promised!]
– Do not use academic words like ‘consideration’ – you’ve been warned!

Terms?

– Note that an agreement-in-principle means nothing without solid terms.
– It’s fine to skip this bit if the terms are obvious from what was agreed.
– Terms can be express, or implied by statute (e.g. Sale of Goods Act).
– Always set out express terms before any implied ones.
– Only set out terms that you are alleging the defendant has breached!
– No need to copy very long terms word-for-word. Paraphrase them.

Defendant’s Knowledge?

This is only relevant in cases where you’re planning to argue that the loss or damage is not too remote. In such cases, identify anything said by or to the defendant at the time of agreement which supports what he ought reasonably to have had in contemplation. For example, when promising to deliver a new cooker by 2pm on Friday, was the defendant aware that failure would mean the claimant having to cancel a big dinner party?

Performance?

Set out what the claimant did, and what the defendant did wrong or failed to do. For example, the claimant (buyer) may have paid for a cooker, but the defendant (seller) has failed to deliver that cooker as promised. Conversely, the claimant (seller) may have delivered the cooker, but the defendant (buyer) has failed to make payment on delivery. Sometimes, agreements ‘fall through’ before either party has performed obligations; hence, performance is irrelevant in such cases.

Breach?

– You must expressly state that the defendant breached the agreement!
– If you fail to expressly allege breach against the defendant, the court (or
your examiner) will not rescue the claim by inferring that he’s at fault.
You’ve been warned!
– In what way/s did breach occur? [Identify each violation precisely!]
– Is the exact date of breach known? [If yes, state that date!]
– If the exact date is uncertain, state “on or about” such-and-such date.
– Is defendant asserting repudiatory breach due to a failure of claimant?
– If yes, must be able to state that claimant did not accept the repudiation
… nor did claimant affirm the contract after breach occurred.

Causation, Loss and Damage?

– It is essential that you start the causation paragraph with: “As a result of
the Defendant’s breach, the Claimant suffered loss/damage.” If you fail
to expressly allege causation, the court (or your examiner) will not
rescue the claim by inferring its existence. You’ve been warned!
– Allege causation, then put a heading: Particulars of Loss and Damage.
– Under that heading, set out financial losses in a simple, itemised list.
– If a precise sum is being claimed, set out how it has been calculated.

Interest?

– Does an express term of the agreement set out how much interest may
be payable in the event of late payment? [If yes, state that rate!]
– If the contract is silent as to interest, identify the relevant statute for
claiming interest and state the statutory rate – e.g. 8% per year.
– In any event, calculate the daily rate until judgment or sooner payment.

Pre-Action Conduct?

Often a formality. State whether both parties have complied with the Practice Direction on Pre-Action Conduct – that is, unless the facts reveal that the defendant is blatantly refusing to co-operate… then this is your chance to grass him up!

Remedies Sought?

Known informally as The Prayer! It should look like this:

AND the Claimant claims:

  • Damages.
  • Interest as set out in paragraph X.

… but make sure to say so if different remedies are being sought as alternatives to one another. Wouldn’t want the judge to think you’re being cheeky by asking for them all!

That concludes breach of contract. Moving right along.

For a negligence claim, before putting fingers to keyboard (or pen to paper in the exam), you should fact manage the brief by reading and identifying information that fits snugly under each of these headings:

  1. Parties and Facts Giving Rise to Duty;
  2. Accident/Events/Cause of Complaint;
  3. Cause (or Causes) of Action;
  4. Causation, Loss and Damage;
  5. Interest;
  6. Pre-Action Conduct;
  7. Remedies Sought.

Again, these headings offer a convenient way for you to conduct fact management. They should not be treated as an exact ‘template’ for your drafting.

So what exactly do I mean by fact management? …

Parties and Facts Giving Rise to Duty?

– Who are the parties? [Identify them clearly!]
– Simply state the facts that qualify your case as a duty-of-care scenario.
– If defendant was a driver and the claimant a pedestrian … say so!
– If defendant was an occupier and the claimant his visitor … say so!
– If defendant was an employer and the claimant his employee … say so!
– But don’t use academic terms like ‘duty of care’ – you’ve been warned!
… unless no duty exists, or the duty is quite unusual (very rare today!)
– Remember:  you simply write the right things to make the law bite.

Accident/Events/Cause of Complaint?

Describe, e.g. the car collision, in precise detail – including location, time and the date it occurred. If the exact date is uncertain, use “on or about” to approximate. Also, use neutral language to describe events, as you will be pointing the finger of blame at the next step, when you formally accuse the defendant of being negligent.

Cause (or Causes) of Action?

– You must expressly state that the (e.g.) accident was caused by the
defendant’s negligence and/or the defendant’s breach of any relevant
statutory duty that may apply to the facts. At this point in your draft,
it is fine to refer to relevant statutory duties, though the names
Donoghue and Stevenson should not be seen anywhere (unless those
happen to be the parties’ names!), nor should any other cases be cited.
Imagine that statutory duties get a mention in drafting as Parliament is
supreme! But judge-made law must be kept on the down-low.
– Allege that the defendant’s negligence and/or breach of statutory duty
caused the accident, then put a heading: Particulars of Breach of
Statutory Duty (if relevant) followed after that by the heading:
Particulars of Negligence. You must deal with any statutory duties
before common law ones – again, because Parliament is supreme!
– Just prior to the ‘Statutory Duty’ heading, identify which statute and
section number applies.
– Under both headings, make your particulars… particular! That is, list
every possible act or omission on the part of the defendant which could
amount to negligence. Unlike when describing the breach of a contract,
breach of duty offers scope for creativity. Even a typical car accident
can be attributed to many possible faults on the part of a driver, and
you are free to allege them all, assuming they can be credibly alleged –
e.g. it wouldn’t be fair to allege that the driver was busy changing a
CD at the moment of impact if there is no evidence to support that.
– If accusing multiple defendants of negligence within the same claim,
dedicate a separate paragraph to making each accusation, then draft
separate particulars of negligence/breach of statutory duty against each
individual defendant. Avoid confusing the judge at all costs!

Causation, Loss and Damage?

– It is vital that you start the causation paragraph with: “As a result of the
Defendant’s negligence and/or breach of statutory duty, the Claimant
suffered injury and/or special damage.” If you fail to expressly allege
causation, the court (or your examiner) will not rescue the claim by
inferring its existence. You’ve been warned!
– Next, put a heading: Particulars of Injury (if the claimant was injured).
– Under that heading, list all injuries sustained. In addition, the following
information must be provided:

  • Claimant’s age and date of birth;
  • Treatment received to date;
  • Claimant’s present situation;
  • Future prognosis;
  • Any other relevant matter, such as a likely handicap on the labour market;
  • … and reference must be made to the medical report that should accompany the Particulars of Claim.

– Next, put a heading: Particulars of Special Damage.
– Under that heading, simply state: “The special damages claimed by the
Claimant are set out in the schedule of past and future expenses and
losses served with these Particulars of Claim.” On my Bar course, it is
not necessary to draft this separate schedule, so that’s job done!

Interest?

State the relevant basis for claiming interest (daily rate only needed in personal injury cases).

Pre-Action Conduct?

Often a formality. State whether both parties have complied with (e.g.) the Pre-Action Protocol for Personal Injury Claims; that is, unless the facts make plain that the defendant is blatantly refusing to co-operate… then this is your chance to grass him up!

Remedies Sought?

Known informally as The Prayer! It should look like this:

AND the Claimant claims:

  • Damages.
  • Interest under section 35A of the Senior Courts Act 1981 to be assessed.

This concludes Part 1. In Part 2, I will provide further tips on drafting the Particulars of Claim, and will discuss drafting the Defence document, whose aim should be to ‘knock out’ as many of the essential particulars as possible. I will also discuss the Defence and Counterclaim document, which draws the last two together, but with a few neat tricks of its own.

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