CIVIL LITIGATION

Chapter 7.1/7.2/7.8 – Drafting particulars of claim

 Statements of case - formal documents which parties concisely set out their respective cases.
 trial the court will decide only those issues which are raised in the statements of case.
 Trial court will not usually allow party to pursue issue which, is not stated in statement of case -
Royal Brompton Hospital NHS Trust v Hammond & Others [2000] LTL, 4 December.
 r 2.3 a ‘statement of case’:
 (a) means a claim form, particulars of claim where these are not included in a claim form,
defence, Part 20 claim [see Chapter 8] or reply to defence; and
 (b) includes any further information given in relation to them voluntarily or by court order
under r 18.1.
 The defendant’s statement of case is called a defence.
 Frequently, only statements of case in a claim will be claim form, separate particulars of claim
and defence.
 Sometimes, reply to the defence and in other cases a counterclaim.
 Rules relating to statements of case are Part 16 CPR 1998 and accompanying Practice Directions.
 Part 16 does not apply if the claimant has used the Part 8 procedure.
 Five stages of litigation (see 1.3), it can be seen that statements of case are dealt with at Stage 2.
 particulars of claim for breach of contract should deal with essential material facts that establish
cause of action, namely:
 (a) the status of the parties (eg, defendant’s business when relying on sale during course of
that business to establish terms implied by Acts);
 (b) chronological story (eg, request for a sample; relevant pre-contract statements, etc);
 (c) contract, ie date, type (written or oral), parties, subject matter, consideration;
 (d) express terms relied on;
 (e) implied terms relied on;
 (f ) chronological story (eg, delivery, payment, etc);
 (g) breach alleged and particularised;
 (h) factual consequences of breach;
 (i) chronological story (eg, rejection or acceptance of repudiation, etc);
 (j) damage and loss alleged and particularised;
 (k) interest (contract; Late Payment of Commercial Debts (Interest) Act 1998; SCA 1981, s
35A, or CCA 1984, s 69).
 In relation to either the particulars of claim or the defence, by para 13.3 of PD 16, a party may:
 (1) refer in his statement of case to any point of law on which his claim or defence, as the case may be,
is based,
 (2) give in his statement of case the name of any witness he proposes to call, and
 (3) attach to or serve with this statement of case a copy of any document which he considers is
necessary to his claim or defence, as the case may be (including any expert’s report to be filed in
accordance with Part 35).
 No need to state any law - only if the parties and the court would otherwise ‘be left to speculate
upon the relevance in law of a purely factual narrative’ (per Buxton LJ in Loveridge v Healey
[2004] EWCA Civ 173, (2004) The Times, 27 February).
 A party can choose to indicate if he has any witness in mind who will prove a particular fact.
 Can attach to a statement of case any document he considers ‘necessary’ to claim or defence.
 Expert report attached only if the court has given permission for the party to rely on that expert.
 para C1.3(e) of the Commercial Court Guide, which states: ‘An expert’s report should not be
attached to the statement of case and should not be filed with the statement of case.’
 By PD 5A, para 2.2, every document prepared by a party for filing or use at the court must:
 (1) unless the nature of the document renders it impracticable, be on A4 paper of durable
quality having a margin not less than 3.5cm wide;
 (2) be fully legible and should normally be typed;
 (3) where possible, be bound securely in a manner which would not hamper filing, or
otherwise each page should be endorsed with the case number;
 (4) have the pages numbered consecutively;
 (5) be divided into numbered paragraphs;
 (6) have all numbers, including dates, expressed as figures (day of month and year only); and
 (7) give in the margin the reference of every document mentioned that has already been
filed.
 The following principles (Queen’s Bench Guide, para 5.6.4) should be followed:
 (a) a statement of case must be as brief and concise as possible;
 (b) a statement of case should be set out in separate consecutively numbered paragraphs
and sub-paragraphs;
 (c) so far as possible each paragraph or sub-paragraph should contain no more than one
allegation;
 (d) the facts and other matters alleged should be set out as far as reasonably possible in
chronological order;
 (e) the statement of case should deal with the claim on a point-by-point basis, to allow a
point-by-point response;
 (f ) where a party is required to give reasons, the allegation should be stated first and then
the reasons listed one by one in separate numbered sub-paragraphs;
 (g) a party wishing to advance a positive claim must identify that claim in the statement of
case;
 (h) any matter which if not stated might take another party by surprise should be stated;
 (i) where they will assist, headings, abbreviations and definitions should be used and a
glossary annexed; contentious headings, abbreviations, paraphrasing and definitions should
not be used, and every effort should be made to ensure that they are in a form acceptable to
the other parties;
 (j) particulars of primary allegations should be stated as particulars and not as primary
allegations;
 (k) schedules or appendices should be used if this would be helpful, for example where
lengthy particulars are necessary, and any response should also be stated in a schedule or
appendix;
 (l) any lengthy extracts from documents should be placed in a schedule.
 Commercial Court Guide (Appendix 4) - particular care should be taken to set out only those
factual allegations which are necessary to support the case - evidence should not be included.
 PD 5, para 2.1, where a firm of solicitors prepares a statement of case, the document should
be signed in the name of the firm.
 Outcome 5.1 - solicitor must never deceive, or knowingly or recklessly mislead, the court.
 IB 5.7, this includes not drafting a statement of case that contains either:
 (a) any contention which the solicitor does not consider to be properly arguable; or
 (b) any allegation of fraud, unless the solicitor is instructed to do so and he has material
which he reasonably believes establishes, on the face of it, a case of fraud.
 If client completes the statement of case with a material error the solicitor should advise the
client to amend the statement of case.
 If the client refuses to do so, the solicitor should cease to act for the client.
 Outcome 4 - the solicitor should not inform the court or any other party of the reasons for
ceasing to act.

CONTENTS OF PARRTICULARS OF CLAIM

 Rule 16.4(1) states that the particulars of claim must include:

 (a) a concise statement of the facts on which the claimant relies;
 (b) if the claimant is seeking interest, a statement to that effect and the details set out in
paragraph (2).
 The primary function of the particulars of claim is to state concisely the facts upon which the
claimant relies.
 Claim based on written contract
 para 7.3 of PD 16:
 (1) a copy of the contract or documents constituting the agreement should be attached to or served
with the particulars of claim and the original(s) should be available at the hearing, and
 (2) any general conditions of sale incorporated in the contract should also be attached.
 Claim based on oral contract
 para 7.4 of PD 16:
 Where a claim is based upon an oral agreement, the particulars of claim should set out the
contractual words used and state by whom, to whom, when and where they were spoken.
 Other particular matters
 Para 8.1–8.2 of PD 16 - further matters. For example, by para 8.2:
 The claimant must specifically set out the following matters in his particulars of claim where he
wishes to rely on them in support of his claim:
 (1) any allegation of fraud,
 (2) the fact of any illegality,
 (3) details of any misrepresentation,
 (4) details of all breaches of trust,
 (5) notice or knowledge of a fact,
 (6) details of unsoundness of mind or undue influence,
 (7) details of wilful default, and
 (8) any facts relating to mitigation of loss or damage.
 Interest
 Rule 16.4(2) where the claimant is seeking interest - claimant must:
 (a) state whether he is doing so—
 (i) under the terms of a contract;
 (ii) under an enactment and if so which; or
 (iii) on some other basis and if so what that basis is; and
 (b) if the claim is for a specified amount of money, state—
 (i) the percentage rate at which interest is claimed;
 (ii) the date from which it is claimed;
  (iii) the date to which it is calculated, which must not be later than the date on which the claim
form is issued;
 (iv) the total amount of interest claimed to the date of calculation; and
 (v) the daily rate at which interest accrues after that date.
 claimant would normally seek to do this where the contractual interest rate is higher than
the current statutory interest rate, ie usually 8% pa in non-commercial cases or 1% pa above
base rate in commercial cases.
 Can claim a higher rate of interest than the statutory rate if the Late Payment of Commercial
Debts (Interest) Act 1998 applies.
 Can still seek statutory interest under s 35A of the SCA 1981 or s 69 of the CCA 1984 in the
alternative, just in case court refuses to award interest under the contract or the 1998 Act.
 In the High Court this would be under s 35A of the SCA 1981 - county court under s 69 of the
CCA 1984.
 Page 99 – 102 for example of particulars of claim

 Particulars of breach and damage

 particulars of the breach of a contract or tortious duty must always be stated so that the
defendant knows exactly the manner in which he is alleged to have been in breach.
 Detail of the claim for damages is most conveniently set out in ‘particulars of loss and
damage’ where each head of damage is itemised.
 The relief or remedy claimed must be specifically stated in the particulars of claim.
 Traditionally repeated in summary form towards the end of the particulars of claim,
immediately before the date.
 In a debt claim, the summary will often include the claim for the amount of the debt, the
exact amount of interest claimed up to the date of issue of the proceedings and the daily
rate of interest claimed thereafter.
 In a damages claim, it will include the claim for damages plus interest.
 The statement of truth
 If the particulars of claim are not part of the claim form itself, they must be verified by a
statement of truth.
 Practical points
 There must be a link or thread between the key parts of the particulars of claim. So, in a
breach of contract claim:
 (a) the express and/or implied terms relied on must be the same ones said to have been
breached by the defendant;
 (b) the factual consequences of the breach should be the same ones said to constitute
the damage and loss.
 See page 103 for example

SUMMARY: HOW SHOULD YOU APPROACH DRAFTING PARTICULARS OF CLAIM?

 Structure formalities: PD 5A
 Examples include:
 (1) Paragraph 2.1 provides that statements of case drafted by a legal representative as a
member or an employee of a firm should be signed in the name of the firm.
 (2) Paragraph 2.2 includes that the document should be divided into numbered
paragraphs, with all numbers, including dates, expressed as figures.
 Content: PD 16
 Examples include:
 (1) If relying on written contract: PD 16, para 7.3 – a copy of the contract or documents
constituting the agreement should be attached to or served with the particulars of claim.
 (2) If relying on oral contract: PD 16, para 7.4 – the particulars of claim should set out
the contractual words used and state by whom, to whom, when and where they were
spoken.
 (3) Stating a claim for interest: PD 16, para 3.7 (cross-referring to r 16.4(2)).
 (4) Statement of truth: PD 16, para 3.4.
 General points
 (1) Be as brief and concise as possible. Include only material facts, but ensure all material
facts are stated.
 (2) State the case on a point-by-point basis in separate, consecutively numbered paragraphs
and sub-paragraphs. So far as possible, each paragraph or sub-paragraph should contain no
more than one allegation.
 (3) Put the facts in chronological order, unless it is inappropriate to do so.
 (4) Allege breach of terms and/or duty, or loss and damage, then follow that with particulars
listed one by one in separately numbered sub-paragraphs.
 (5) Use definitions where appropriate.
 (6) Refer to evidence and law only where it is proportionate and necessary to help
particularise the case.
 (7) Attach documents only where it is proportionate and necessary to help particularise the
case.