BPTC Civil Litigation

Transcription

1 BPTC CIVIL LITIGATION SAMPLE NOTES BPTC Civil Litigation 1 What is the overriding objective? To deal with cases justly. This is amplified by the detailed provisions of CPR 1 2 What can the court do to penalise a litigant who does not comply with the letter and spirit of the Civil Procedure Rules? Generally, penalise that person in costs and possibly interest. More radical sanctions such as striking out are theoretically possible, but apparently reserved for the grossest cases. Alternatively, the court may forgive the failure and make directions for putting things right under CPR How many Pre- Action Protocols are there? What are they? Currently, 11: Construction and Engineering Disputes Defamation Personal Injury (general) Clinical Disputes Professional Negligence Judicial Review Disease and Illness Housing Disrepair Possession Claims based on rent arrears Possession Claims based on mortgage arrears Low Value Personal Injury Claims in Road Traffic Accidents 4 How many ways can you start civil proceedings? Which is the most common? For our purposes, 3. Part 7, Part 8 and by petition (preserved by statute in company and insolvency cases). Part 7 is the most common. 5 How do you decide in which court you should start civil proceedings? Check that your claim is not reserved to one or other court by statute. Check that both courts have financial jurisdiction the county court s equitable jurisdiction is still generally limited to 30,000. If claim has financial value then it can only be brought in the High Court if for 25,000 generally or 50,000 personal injury.

2 Otherwise look at the complexity and general importance of the claim. 6 How many ways are there to serve a claim form? Which is most common? The main ones are First class post by the court Service between appointed solicitors. Personal service, leaving the claim form at an appropriate address, electronic transmission and whatever the court thinks fit in terms of alternative service are also possible. 7 What options does a defendant have when served with a claim form? Which is normally the best? For our purposes, admit, acknowledge service or serve a defence. Applying to strike out the claim or for summary judgment or challenging the court s jurisdiction are also possible. Serving a defence would be best as it makes it more difficult for the claimant to apply for Part 24 summary judgment. 8 Where do you find the rules about what a statement of case must say? Part 7 for claims, and Parts 16 (and also 8, 15 and 17) more generally. 9 What further documents should normally be served with the claim form in claims for (a) breach of contract and (b) personal injury? (a) A copy of the contract if written or a summary of the oral terms (b) A medical report and schedule of loss and damage. 10 What requirements must a defence meet? What are the options for dealing with a particular allegation? A defence must deal with all the allegations in the particulars of claim and introduce any further areas on which the defendant wants to rely. A particular allegation can be admitted, denied, or neither admitted nor denied. è Continues

3 Subject wise notes Freezing Injunctions What is a freezing injunction? What is the procedure for applying for a freezing injunction? What are the requirements for the court to make an order for a freezing injunction? What terms must be incorporated into an order for a freezing injunction? Can a freezing order be varied or discharged, and on what grounds? It is an interim order that restricts a party from removing assets located within the jurisdiction out of the country, or generally dealing with assets whether in the jurisdiction or not. A freezing injunction application must usually be: Dealt with in the High Court; Made to a judge sitting in private; Made without notice in order to be effective; Made before service of the claim form; Made with full and frank disclosure; and Supported by evidence within affidavits. Following an granting of a freezing injunction, a hearing must be arranged a few days later on notice with the respondent being provided with all the evidence used by the applicant. It must be just and convenient to do so; and the case is (1) A cause of action justiciable in England & Wales; (2) A good arguable case - this is high than serious issue to be tried, but doesn't require judge believing case has better than 50% chance of success; (3) D having assets within the jurisdiction; and (4) A real risk that D will dissipate his assets before judgment can be enforced - this required solid evidence. The terms to be included can be divided into topics: Undertakings by Claimant ( C ) (a) To pay damages to defendant ( D ) should the injunction be found to have been incorrectly made; (b) To notify D forthwith of the terms of the order (since made without notice); (c) To pay reasonable costs and expenses of third parties ( TPs ) in complying with the order; and (d) To indemnify any TPs in respect of any liability incurred as a result of the order. (e) [In cases of urgency to issue a claim form and to swear and file affidavits deposing the facts relied on by the judge.] Assets covered by the order This may either be a: (a) General order, which covers all D s assets; (b) Maximum-sum order, which covers D s assets up to the highest amount that the case may require; and (c) Orders attached to specific assets. An application to vary or discharge a freezing injunction can be made under Part 23, either at the return on- notice hearing or at another hearing especially for the application. Grounds for variation

4 Original order is more onerous to D than necessary; or Imposes unnecessary obligations on a thirdparty. Grounds for discharge o Case unsuitable for freezing injunction - one of the requirements is not made out, e.g. good arguable case; o D agrees to provide sufficient security for the claim; o Where the order was made where C did not make material disclosures; o Unfair conduct on the part of the C; o Failure on the part of the C to press on with the substantive proceedings after the order. Past paper sample

5 A snapshot of the Civil Notes Folder Drafting Samples Defence and Counterclaim Defence 1. Paragraph 1 of the Particulars of claim is admitted except that: a. The Contract was made orally and evidenced in writing by the Sold Note No.50344; and b. It was an express term of the Contract that the crude palm oil would have an FFA content of under 2%. 2. The following were the implied terms of the Contract: a. It was an implied term of the Contract that the goods would correspond to the contract description-namely that the goods would be crude palm oil with an FFA content of 2% or less;

6 b. It was an implied term of the contract that the goods would be of satisfactory quality; and c. It was an implied term of the contract that the goods would be reasonably fit for the purpose for which it was being bought. 3. Paragraph 2 of the Particulars of Claim is admitted except that it was an implied term of the contract that the Claimant would include a charterparty with the documents supplied. 4. Paragraph 3 of the particulars of claim is denied. In purported performance and in breach of the Contract, the Claimant supplied crude palm oil that had FFA content of over 2%. è Continues Civil Advocacy Skeletons SKELETON ARGUMENT OF THE CLAIMANT TO SET ASIDE DEFAULT JUDGEMENT INTRODUCTION 1. This is an application on behalf of the Applicant/Claimant ( Applicant ) to set aside a judgement in default entered against her on under CPR Part 12. The application is made pursuant to CPR r A will refer to the following documents: a. Particulars of Claim issued by Applicant/Claimant ( POC ) dated [Pages 3-4] b. Defence and Counterclaim ( D&C ) issued by the Respondent/Defendant ( Respondent ) dated [Pages 5-6]

7 c. Certificate of service dated [Pages 7-8] d. Judgement dated [Page 10] e. Application Notice to set aside judgement in default dated [Page 11-12] f. Witness Statement of the Applicant, Ms. Denise Lillee ( WS/C ) dated together with exhibit DL1. [Pages 14-17] BACKGROUND 3. The Appellant and the Respondent (collectively, the Parties ) met in [WS/C para 2] The Parties were both qualified as Independent Financial Advisors ( IFA ) who established WeAdviseU ( the Partnership ), an Independent Financial Advice business and an equal partnership at will, in or about February [WS/C para 3] 4. The Parties kept matters informal so as to avoid incurring legal costs. The Parties started using the Applicant s existent resources, contacts and office at Unit 3, 14 Blackheath Road, London, SE15 8MP ( the Office ). [WS/C para 4] 5. On or about the same time, the Respondent invested 8500 ( the Amount ) into the Business.[WS/C para 4] Opinion Sample ADVICE ON QUANTUM 1. I am asked to advise Mr Anil Salim as to the quantum of damages he is likely to receive for personal injuries and loss arising out of an accident at work on 19 October 2009.

8 BACKGROUND At the material time Mr Salim was employed by Rushworth Engineering Limited ( Rushworth ) as a general labourer. On 19 October 2009 he was injured at work when he lost his balance whilst picking up a steel crankshaft component. He staggered backwards due to the weight of the component, slipped on some oil which.continues Skeletons/precedents to aid drafting and opinion writing generally This one is on contract.i will also provide similar materials for other areas. 1. Background Facts. a. The Claimant is a XYZ and the owner of a property at ABC, DEF ROAD, E1 23F and its contents. The Defendant, on the XYZ Date, held himself out as skilled, experienced and competent in the...job; or b. 1. The Claimant is the owner of a house and land known as XYZ etc. 2. The Defendants were...bxd etc c. At all material times: i. The Claimant was, and continues to be, the owner of a property known as...xyz ii. The Defendant(s) was acting in the course of business, specialising in the design, manufacture and installation of CDEF etc. 2. Contract: a. Identify the contract, oral or written? date, time. 3. Express terms 4. Implied Terms. It was an implied term of the contract that..or The following were implied terms of the Agreement 5. D s Knowledge 6. Performance (purported?)

9 7. Breach [in breach of the above implied term the Defendant did that without reasonable care and skill]+ Particulars 8. Acceptance of repudiatory breach(?) 9. Causation, Loss and damage + Particulars 10. Interest 11. Pre-Action Protocol compliance 12. Prayer