No Dodging The Draft! (part 2)

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Following on from the last post, you will find tips and insight below on how to draft three key documents in civil litigation. For my sins, I must re-sit the Drafting assessment next month.

PARTICULARS OF CLAIM (continued)

To recap, in England, we have a system of fact-based pleading.

So, when drafting a claim for breach of contract, you should stick to pleading essential facts and avoid straying into legal argument. It is thus unnecessary for you to state any of the following:

  • That there was intent to create legal relations;
  • That the loss was reasonably within the parties’ contemplation;
  • That no exclusion or limitation clause applies;
  • That the claim is not statute-barred;
  • That the claimant has reasonably mitigated all losses;
  • That the claimant is the innocent party in this matter.

In the last post, you saw that the statutory interest rate on damages accruing for breach of contract is 8% per year. This rate is the same whether you are claiming in the High Court or County Court, although, depending on which court you are in, the statute differs. For High Court cases, claim interest under section 35A of the Senior Courts Act 1981. For County Court cases, claim interest under section 69 of the County Courts Act 1984.

When drafting a negligence claim, you should stick to pleading essential facts and avoid straying into legal argument. It is thus unnecessary for you to state any of the following:

  • That the defendant owed the claimant a duty of care;
  • That the loss suffered by the claimant is not too remote;
  • That the claim is not statute-barred;
  • That there was no contributory negligence on the claimant’s part;
  • That the claimant has reasonably mitigated all losses.

If claiming against a company vicariously (i.e. for an employee’s tort), you should name the tortfeasor-employee as First Defendant and the employer-company as Second Defendant. Then, in the second paragraph of the Particulars of Claim (having identified the Claimant in the first), state: “At all material times, the First Defendant was the employee or agent of the Second Defendant, acting in the course of his employment.”

If a claimant is claiming damage to (e.g.) his car caused by the negligence of the defendant, it is crucial that ownership is established. This may be achieved (e.g.) by stating that the defendant collided with a Ford Focus, registration number ABC 123, belonging to the claimant. Alternatively, you might simply state that the claimant was driving his car, when… etc.

When drafting Particulars of Negligence, remember that every allegation you level at the defendant (if satisfactorily proved) must be capable of amounting to a breach of duty. If you don’t need it, don’t plead it! On the other hand, fail to plead enough and you may find you’re stuffed!

When drafting Particulars of Negligence, a good stock phrase to use is “any or proper” – e.g. the defendant failed to keep any or proper lookout. This wording stops an allegation falling through if the defendant is able to prove that he was keeping lookout some of the time. The allegation says that even if he was keeping lookout, he wasn’t doing so properly.

Another good stock phrase is “any or any sufficient” – e.g. the defendant failed to take any or any sufficient steps to prevent access. This wording stops an allegation falling through if the defendant is able to prove that he did take some steps at least. The allegation says that even if he did take some steps, those steps weren’t sufficient.

Many more examples of stock phrases can readily be found in drafting.

In some negligence cases, e.g. road traffic claims, it is likely to assist the claimant’s case if the defendant is convicted of an offence for the same incident that has caused the claimant’s losses (such as careless driving). Indeed, many civil claimants will wait to see if a criminal prosecution is brought before commencing proceedings. Hence, the existence of a criminal conviction is a relevant matter which ought to be pleaded in the Particulars of Claim. I say ‘pleaded’ because it is open to the defendant to dispute a conviction’s authenticity, or he may simply appeal against his conviction and be cleared. Therefore, in the paragraph that immediately follows the Particulars of Negligence, you should state (e.g.):

“As evidence of the Defendant’s negligence, the Claimant will seek to rely on the fact that on 2nd May 2015 at Birmingham Magistrates’ Court, the Defendant was found guilty of an offence of careless driving committed at the time and date of the said collision.” – On first glance, this looks suspiciously like pleading evidence. Rest assured, however, that details of the when, where and what of convictions do qualify as fact.

It is fine to use separate ‘particulars’ headings for each individual claimant within the same claim. For example: Particulars of Special Damage Suffered by the Second Claimant; Particulars of Injury of the First Claimant (etc).

When claiming interest on damages in a PERSONAL INJURY case, there is no need to refer to any statute, though you should claim half the “special account rate” of 0.5% per year on special damages from the date of loss until today (state the sum due), and continuing thereafter until judgment or sooner payment (state the daily rate). On general damages, simply claim 2% per year from the date of service of the Claim Form until judgment – remember, interest is not payable on future losses!

When claiming interest on damages in a straight-forward negligence case (involving no personal injury), you do refer to one of the two statutes, but interest is simply claimed “at such rate and for such period as the court thinks fit” – so no calculations are necessary.

After interest, but before The Prayer, it is vital to include a statement of value in personal injury claims. This does not require a heading, nor is it complex. Simply state (e.g.): “The value of this claim exceeds £10,000 but does not exceed £25,000.” – the idea being to assist the court with track allocation. However, where there are multiple claimants in the same case, and all are obviously seeking comparable sums, you should caveat the statement of value thus: “In the case of each Claimant…”

This concludes the Particulars of Claim section. In sum, try to remember when drafting that defendants deserve sufficient information to fully and clearly understand any claim that they may be called upon to defend. And speaking of defending, the next key document that we will consider is called the…

DEFENCE

Again, England has a system of fact-based pleading.

So, when drafting a Defence, you should stick to pleading essential facts and avoid straying into legal argument or evidence. Do keep in mind, though, that you must allege all facts here that you plan to prove at trial.

The Defence has two main aims – (1) to respond to every allegation made in the Particulars of Claim, and (2) to positively advance the defendant’s version of events.

As a general guide, you should set out the Defence in a way that logically follows the Particulars of Claim. However, this does not mean that you should always try to ‘mirror’ the Particulars of Claim by drafting an equal number of paragraphs!

As when drafting particulars, you should start by fact managing the brief, but the approach differs for the Defence because the claimant has already set the agenda for things to come. Thus, to some extent, the defendant must ‘dance’ to the claimant’s tune. The best approach is to ensure that you are clear in your own mind what the defendant’s version of events is. Understanding the story from the defendant’s perspective should put you in a good position to work through the particulars and be able to spot lies, discrepancies and/or convenient half-truths.

For every allegation in the Particulars of Claim, the Defence must state whether the allegation is admitted, denied or neither (as the defendant has no knowledge of the matter stated). This is usually done on a paragraph-by-paragraph basis – i.e. admitting, denying or requiring proof as to whole paragraphs at a time. However, great care must be taken, as one paragraph may contain multiple allegations which need to be ‘unpacked.’

Remember that EVERY allegation must be responded to. The rules say that what you don’t deny (or require to be proved), you admit by default.

As a general starting point, the wording to use is:

“Paragraph X of the Particulars of Claim is admitted.”

“Paragraph X of the Particulars of Claim is denied.”

“The Defendant is unable to admit or deny the allegation contained in paragraph X, but requires the Claimant to prove it.”

You may be wondering why the rules of drafting don’t simply allow a Defence to state: “Everything alleged by the claimant is denied!”

The answer… wasted time and inefficiency. Not everything a claimant says is likely to be disputed by the defendant – unless the defendant is a highly vexatious character! For example, where two cars have collided, there may be common ground between the drivers involved. Both may agree that they were driving towards one another. Both may agree that they were on a narrow country lane. Both may agree that the collision happened on a sharp bend. Both may agree that it was raining heavily. Both may agree that visibility was poor. Both may agree that the road surface was slippery with mud. Both may agree that they were driving below the speed limit, etc. Thus, imagine how much longer the trial would take, and how much more expensive it would be, if the claimant had to adduce evidence in support of all such points. It is far better that the defendant states which points he takes issue with, and why.

It follows that under the rules of drafting, any time a defendant denies a paragraph (or multiple allegations) in the Particulars of Claim, he must immediately go on to state WHY. It will sometimes be necessary to state why and then state the defendant’s account of how it actually happened. If responding to multiple allegations within the same paragraph, dedicate a separate paragraph or sub-paragraph to each allegation in the Defence.

When responding to pleaded aspects of a medical report (as in a personal injury case), the basic wording of responses should be altered thus:

“Paragraph X is AGREED.”

“Paragraph X is DISPUTED.” [must say why!]

“The Defendant neither agrees nor disputes paragraph X, but has no knowledge of the matters stated therein.”

… The wording changes as the defendant cannot ‘admit’ or ‘deny’ things written in a medical report. He can ‘agree’ or ‘dispute’ them, though.

Again, if you fail to DISPUTE pleaded medical findings (or at least reply that you lack the knowledge to say either way), you will be taken to have AGREED those findings by default. The claimant will thank you for this. Your client may not!

By denying (or disputing) allegations, the defendant is thus choosing to make issues out of them. So avoid confusing the judge by using the word ‘issue’ in its looser, non-legal sense!

In a drafting assessment at Bar School, not denying certain allegations (e.g. causation) will result in automatic failure. However, you may get away with not responding to a less ‘vital’ allegation, provided you have AT LEAST set out the nature of your case in relation to the ISSUE to which that allegation pertains. In other words, taking each opportunity to tell your client’s story may save your skin later. That having been said, you will lose marks for being repetitious – so don’t get paranoid and add your client’s full account to every paragraph!

Be aware that ‘causation’ may be alleged numerous times, and for numerous aspects of the claimant’s claim. Deny causation, always! Beware dangerous terms such as:

  • because of…
  • as a result of…
  • due to…
  • owing to…
  • by reason of…
  • by virtue of…

… and, of course, the word ‘cause!’

The rules of drafting provide that MONEY CLAIMS are an exception to the general rule on denial, insofar as failing to deny an allegation that the defendant owes money to the claimant will not result in admission-by-default. Rather, the defendant is taken to require proof of the sum owing. Hence, in a drafting assessment, failing to deny the sum owing would count as a minor error.

Don’t get so hung-up on analysing words that you neglect to see the legal consequences lurking behind those words, ready to pounce. Thus, you must deny not only the words of an allegation, but its full substance too. For example, try to avoid a situation where (e.g.) a sympathetic judge may be tempted to find that, whilst the defendant wasn’t negligent in quite the manner alleged, he was negligent nonetheless. Avoid this by couching denials in broad terms, such as: “Accordingly, it is denied that the Defendant was negligent, either as alleged or at all.” This ensures that the burden of proving negligence weighs heavy on the claimant.

Just as for drafting Particulars of Claim, the Defence comes with its own set of handy stock phrases which can readily be found. The following is a list of stock phrases, which, used well, will make responses watertight:

“Except that [such-and-such also occurred], Paragraph X is admitted.”

“Except that [such-and-such did not occur], paragraph X is admitted.”

“Except that [such-and-such did occur], the rest of paragraph X is denied.”

“If, which is denied, [the Claimant has suffered such-and-such], it is denied that [such-and-such was caused by the Defendant].”

“and/or…”

“as alleged or at all.”

“Further or alternatively…”

“In the alternative…”

“Further or alternatively, the accident was caused or contributed to by the Claimant’s negligence.” [then particularise!]

Towards the end of your Defence, you may wish to include the following statement as a kind of ‘safety net’ in case you’ve overlooked something:

“The Claimant is required to prove all of the allegations set out in the Particulars of Claim, except those expressly admitted above.” – This is unlikely to rescue a badly drafted Defence, but it might help minimise negative marking due to minor oversights.

Aside from denying the claimant’s allegations, you may wish to plead a specific defence, such as limitation, contributory negligence or set-off. Limitation is self-explanatory. Contributory negligence and set-off, aside from being defences, also hold special significance for any counterclaim that the defendant may in turn wish to bring against the claimant. Hence, I will discuss these in the next section.

You may also wish to plead that the claimant has failed to mitigate his losses (if there is evidence to aver so), or that the damage suffered is too remote to claim for. You might require the claimant to prove the nature and extent of the loss and damage that he alleges to have suffered.

This concludes the Defence section. In sum, whilst busy dancing to the claimant’s tune, don’t overlook the need to ‘knock out’ as many of his essential particulars as possible. You should really try to undermine the elements of the cause of action brought against your client. It obviously pays to find out what those elements are before you draft the Defence!

DEFENCE AND COUNTERCLAIM

This final section will be fairly short. It does not need to be long, as we’ve already covered drafting a Defence, whilst ‘Counterclaim’ is just another word for the Particulars of Claim when drafted by a defence lawyer in response to the claimant’s claim.

However, the rule about avoiding repetition finds its greatest expression here. Basically, when drafting the Counterclaim (after drafting the Defence part of the document), instead of drafting a Particulars of Claim from scratch, the process is streamlined by cross-referring to paragraphs of the Defence. This saves having to re-state details such as the parties’ identities and the how, when and where of the (e.g.) road traffic collision. Basically, it works like this…

Imagine that the claimant is suing your client for colliding with his car. In turn, your client blames the claimant. Thus, as well as drafting a Defence to the claim, you are also instructed to draft a Counterclaim.

Imagine now that paragraph 2 of the Particulars of Claim sets out the full details of the collision between the parties’ cars. When drafting the Defence part of the document, you agreed with most of paragraph 2, except for maybe a couple of details. So, at paragraph 1 of the Defence, you pleaded the following:

“Except that [such-and-such did not occur], paragraph 2 is admitted.”

When starting your Counterclaim, there’s no sense in re-drafting all of the crash details. Instead, simply insert a paragraph like this:

“Paragraph 1 of the Defence is repeated.”

Job done! And if there’s something more you need to add, plead it thus:

“Paragraph 1 of the Defence is repeated, and further, … [add details].”

But make no mistake… your Counterclaim must contain all the essential ingredients of a well-drafted Particulars of Claim.

In the last section, you’ll recall that I mentioned the possibility of pleading the specific defence of contributory negligence. This should be done after denying negligence and causation, but before quantum, and particulars should be given under the heading: Particulars of Contributory Negligence. However, that’s not necessarily where it ends. If your client is counterclaiming against the claimant, you may wish to allege that, in fact, he was the negligent one. If so, you can cross-refer to the Particulars of Contributory Negligence in the Defence to support a negligence counterclaim, and add further particulars to these by pleading:

“Paragraph X of the Defence is repeated, and further, the Claimant was negligent in that he also… [list particulars].”

Another specific defence that I referred to was the set-off. In a nutshell, in certain types of cases (e.g. those where both parties have been dealing with one another in the course of a business), the defendant may be refusing to pay the claimant because, among other reasons, he believes that the claimant already owes money to him. Thus, the defendant may use his counterclaim as a basis for his defence. A full discussion of the set-off defence is beyond the scope of this article. However, if your client wishes to rely on his counterclaim as a full or partial defence to the sum being claimed, you should insert the following paragraph at the end of the Defence, just prior to beginning the Counterclaim:

“If necessary, the Defendant will rely upon his counterclaim in this action as a set-off to reduce or extinguish the Claimant’s claim.”

The set-off may serve as a total or partial defence, whereas contributory negligence is a partial defence only.

You may recall that near the end of a Particulars of Claim, you’ll find The Prayer. Counterclaims also need a Prayer, but instead of putting: “AND the Claimant claims…” you should put: “AND the Defendant counterclaims…” – An obvious point, yet easily overlooked in exams!

Finally, bear in mind that the defendant may choose to counterclaim against a third party who is not yet involved in the proceedings. This might happen if (e.g.) the defendant is being sued for colliding with the claimant’s car, although the defendant only collided with the claimant because ANOTHER DRIVER drove into the back of him, shunting his car forward. The fact of the other driver’s poor driving thus gives the defendant a defence to the main claim (“I wasn’t negligent!”), plus a counterclaim against the true culprit.

In conclusion, this post and the last one have given general guidance to the civil drafting process. If you’re looking for a user-friendly book to supplement stuffy materials, I recommend Pleadings Without Tears by William Rose. The 7th edition of this work was bought for me as a gift, though I had no time to enjoy it in the run up to my first Drafting exam. I’m thoroughly enjoying it now, and feeling more optimistic about re-sitting Drafting next month.

And to my more casual readers, I promise that the next post on this blog will be lighter!

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