Statements of Case PDF

Statements of Case 103 CHAPTER 7 Statements of Case 7.1 Introduction 103 7.2 Contents of the particulars of claim 108...

Statements of Case 103 CHAPTER 7 Statements of Case 7.1 Introduction 103 7.2 Contents of the particulars of claim 108 7.3 The defence 120 7.4 Reply to defence 123 7.5 The role of statements of case 123 7.6 Amendments to statements of case (Part 17) 125 7.7 Requests for further information (Part 18) 127 7.8 Summary: how should you approach drafting particulars of claim? 130 7.9 Summary: how should you approach drafting a defence? 131 LEARNING OUTCOMES After reading this chapter you will have learned: the general principles of good drafting of statements of case what must be included in different particulars of claim how to draft a breach of contract claim what must be included in a defence the role of the reply to defence and defence to counterclaim how statements of case define the issues in dispute when and how to amend a statement of case when and how to make a request for further information. 7.1 INTRODUCTION Statements of case are the formal documents in which the parties concisely and precisely set out their respective cases. Pre-CPR 1998, these documents were known as ‘pleadings’ and parties would ‘plead’ their case in them. Now we refer to ‘statements of case’ and parties ‘stating’ their case, but you will often still find reference to the old terminology in court judgments and textbooks. Statements of case are served between the parties (as well as being filed at court) so that each party knows the case they will have to meet at the trial. They must therefore be drafted carefully and reviewed continually as the case develops as the trial court will not usually allow a party to pursue an issue which, on a fair reading of the statement of case, is not stated: see Royal Brompton Hospital NHS Trust v Hammond & Others LTL, 4 December. Nor will the trial court grant a party any relief not claimed in its statement of case (unless that is clearly addressed in subsequent documentation) (see Whalley v PF Developments Ltd LTL, 14 February). In the case of UK Learning Academy Ltd v Secretary of State for Education EWCA Civ 370, Richards LJ said at : Statements of case ought, at the very least, to identify the issues to be determined. In that way, the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law 104 Civil Litigation and the evidence. Equally importantly, it enables the judge to keep the trial within manageable bounds, so that public resources as well as the parties’ own resources are not wasted, and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. If, as [the trial judge] said, there was ‘a prevailing view that parties should not be held to their pleaded cases’, it is wrong. That is not to say that technical points may be used to prevent the just disposal of a case or that a trial judge may not permit a departure from a pleaded case where it is just to do so (although in such a case it is good practice to amend the pleading, even at trial), but the statements of case play a critical role in civil litigation which should not be diminished. Where the parties’ evidence and submissions at trial are based on their statements of case, the trial judge must not determine the issues on a totally different basis (Al-Medenni v Mars UK Ltd EWCA Civ 1041 and Satyam Enterprises Ltd v Burton EWCA Civ 287). [W]here an issue has clearly not been pleaded and was not relied on at the start of the trial, I consider that the onus lies as much on counsel for the party seeking to rely on it as on their opponent to raise the matter with the judge and seek permission to amend. … a party is entitled to rely on the pleaded case as defining the ambit of the issues to be decided at trial. (per Fancourt J in Jacobs v Chalcot Crescent (Management) Company Ltd EWHC 259 (Ch) at ) By 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 [see 7.7]. We considered how to draft a claim form at 5.3.1. In this chapter, at 7.2, we shall examine in detail the contents of particulars of claim. The defendant’s statement of case is called a defence. Frequently, the only statements of case in a claim will be the claim form, separate particulars of claim and the defence. Sometimes, however, a claimant may wish to serve a reply to the defence, and in other cases a defendant may wish to make their own claim against the claimant by way of a counterclaim (see Chapter 8). The rules relating to statements of case are contained in Part 16 of the CPR 1998 and the accompanying Practice Directions. Part 16 does not apply if the claimant has used the Part 8 procedure (see Chapter 8). 7.1.1 Setting parameters In the case of McPhilemy v Times Newspapers Limited 3 All ER 775, Lord Woolf MR said: [Statements of case] mark out the parameters of the case that is being advanced by each party [and] identify the issues and the extent of the dispute between the parties … The need for extensive [statements of case] including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious. 7.1.2 Where they fit into the five stages When thinking about the five stages of litigation (see 1.3), it can be seen that statements of case are dealt with at Stage 2. The detailed evidence is dealt with subsequently at Stage 3. So a statement of case should be thought of as putting together only the bare bones of the case. The ‘flesh’ will be put on by way of detailed evidence later. In Tchenguiz v Grant Thornton UK LLP EWHC 405 (Comm), Leggatt J said at : Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago  Statements of Case 105 and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial. For example, the particulars of claim in respect of a breach of contract claim should deal with the essential material facts that will establish the 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 the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982); (b) the chronological story (eg, knowledge of certain facts that establish the damages claimed are not too remote, request for a sample; relevant pre-contract statements, etc); (c) the contract, ie date, type (written, oral, by conduct or any combination of these), parties, subject matter, consideration; (d) the express term(s) relied on; (e) the implied term(s) relied on; (f ) the chronological story (eg, delivery of goods, supply of services, payment of consideration, etc); (g) the breach of the term(s) relied on alleged and particularised; (h) the factual consequences of breach; (i) the chronological story (eg, rejection, acceptance of repudiation, etc); (j) the damage and loss caused by the breach alleged and particularised; (k) the interest claimed (under the contract; Late Payment of Commercial Debts (Interest) Act 1998; SCA 1981, s 35A, or CCA 1984, s 69 – see 2.7.2). The process of stating a case should operate as a critical audit for the claimant and defendant that they have a complete cause of action or defence. Particulars of Claim, in particular, should generally aim to set out the essential facts which go to make up each essential element of the cause of action – and thought should be given to whether any more than that is either necessary or appropriate. (per HHJ Parfitt in Gerko v Seal EWHC 63 (KB) at ) It is important to bear in mind that the witness statements served later in the proceedings by the claimant and on which they intend to rely at trial will flesh out the detail as to the formation of the contract, etc. Any technical matters will, of course, be dealt with by expert evidence (see 12.13). The contents of statements of case are not, therefore, evidence in a trial (Arena Property Services Ltd v Europa 2000 Ltd EWCA Civ 1943 and Kimathi v The Foreign and Commonwealth Office EWHC 2066 (QB)). This is because statements of case are not supposed to contain evidence. Moreover, the general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public (see CPR 1998, r 32.2(1) at 12.12.1). That statements of case need to be concise is spelt out in PD 16, para 1.3, which provides that, if exceptionally a statement of case exceeds 25 pages (excluding schedules), an appropriate short summary must also be filed and served. While the Practice Direction does not say never, it is plainly intended to discourage parties from filing longer statements of case. (per Pepperall QC in Brown v AB EWHC 623 (QB) at ) Note that the King’s Bench Guide provides at para 5.27: The function of Statements of Case is to state (or dispute) ‘facts’ as opposed to evidence (which is the means by which facts are proved or disproved). They inform both the other parties and the court as to the case which they must meet. They should be concise and allow the reader to understand the case being put forward. They should state the case, and therefore should set out the legal claim (or any legal defence) which is being advanced; but they should not seek to argue the case. 106 Civil Litigation Also note the observations of Stuart-Smith J in Portland Stone Firms Ltd v Barclays Bank Plc EWHC 2341 (QB) at : There is one additional deficiency in the Particulars of Claim which requires mention because it contributed to making an over-long pleading even longer. Section C was entitled ‘Background’. It included pages of background information of which the great majority was irrelevant and should not have appeared in a pleading. It may be of anecdotal interest to know that Sir Christopher Wren’s specification for St Paul’s Cathedral included the use of Portland stone, but it could not be relevant to a claim by a customer alleging fraudulent misrepresentation or breach of contract against its banker and a financial adviser in the 21st Century. 7.1.3 Referring to law, witnesses and attaching documents In relation to any statement of case, by para 12.2 of PD 16, a party may: (1) refer to any point of law, (2) give the name of any witness they propose to call, and may attach to it a copy of any document necessary to their case (including any expert’s report under Part 35). As a general rule there is no need to state any law. Exceptionally the relevant law should be stated 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 EWCA Civ 173, (2004) The Times, 27 February). It will normally be a defendant, however, who will wish to raise a point of law, eg that the claim discloses no cause of action, such as a promise unsupported by consideration, or a defence under the LA 1980: see 7.3. The material facts should establish the relevant legal basis for a claim or defence. It is therefore normally unnecessary to state the statutory basis or legal principles on which the claim or defence is based. For example, where a seller sells goods in the course of a business and the buyer is also a business, there is an implied term that the goods supplied under the contract will be of satisfactory quality. This is implied by s 14(2) of the Sale of Goods Act 1979. So, where a claim is based on breach of that implied term, the claimant only needs to establish its factual basis; there is no need to cite the Act and the section number. See further 7.2.1.7 and 7.2.4. Whilst excessive factual details should not be given in a statement of case, a party can state ‘the name of any witness he proposes to call’. So, a party can choose to indicate if they have any particular witness in mind who will prove a particular fact. There is little advantage in this unless, perhaps, the details have already been given to the other party pre-action, or it helps to particularise the party’s case; for example, in an industrial accident claim, part of the defendant’s case may be that the machinery in question was regularly checked, and so they should state by whom and when. A party can attach to a statement of case any document they consider ‘necessary’ to their claim or defence. This provision ensures that the court has the fullest possible knowledge of relevant facts from the outset. So, if a party has voluntarily disclosed a document pre-action, or has received a document from the other side that assists their case, and it is admissible, then it may be appropriate to attach a copy. But this should only be done where the document is obviously of critical importance and necessary for a proper understanding of the statement of case. Should an expert’s report be attached? Only if the court has already given permission for the party to rely on that expert (which will be most unlikely at this stage) (see Tejani v Fitzroy Place Residential Ltd EWHC 1856 (TCC)). It therefore seems sensible to follow para C1.4(d) 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’. This does not mean that material facts from an expert’s report should not be included in a statement of case. Indeed, in  Statements of Case 107 many cases, issues of causation and breach can only be addressed by a suitable expert. But, just as the report should not be attached, equally the name of the expert and date of the report should not be included. Have a look at the claim illustrated at 7.2.1.7, where the source of the material facts stated in paragraphs 6 (the particulars of breach) and 7 (the factual consequences of the breach) most likely derive from an expert’s report. 7.1.4 Formalities 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; and (7) give in the margin the reference of every document mentioned that has already been filed. Note that the requirement to express dates in figures and not words under (6) above refers to the day of the month and year only. For example, the correct way to express a date is 17 May 2024 and not 17/05/24. The day and year are both numbers but the month is not. The following principles from the King’s Bench Guide, para 5.33 should be followed: (1) a statement of case must be as brief and concise as possible, (2) a statement of case should be set out in separate consecutively numbered paragraphs and sub- paragraphs, (3) so far as possible each paragraph or sub-paragraph should contain no more than one allegation, (4) the facts and other matters alleged should be set out as far as reasonably possible in chronological order, (5) the statement of case should deal with the claim on a point-by-point basis, to allow a point-by- point response, (6) details of the main allegations should be stated as particulars and not as primary allegations, (7) where a party is required to give particulars of an allegation or reasons for a denial, the allegation or denial should be stated first and then the particulars or reasons should be listed one by one in separate numbered sub-paragraphs, (8) a party wishing to advance a positive claim must identify that claim in the statement of case, (9) any matter which, if not stated, might take another party by surprise should be stated, (10) where they will assist, headings, abbreviations and definitions should be used and a glossary annexed; such headings should be in a form likely to be acceptable to the other parties so that they may also use them. Contentious headings, abbreviations, paraphrasing and definitions should not be used, (11) 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, (12) evidence should not be included in statements of case. Lengthy extracts from documents should not be set out. If an extract has to be included, it should be placed in a schedule or appendix. Further, as the Commercial Court Guide at para C1.1(e) emphasises: Evidence should not be included, and a general factual narrative is neither required nor helpful. By PD 5A, para 2.1, where a firm of solicitors prepares a statement of case, the document should be signed in the name of the firm. Where a barrister prepares a statement of case, it should bear their name (traditionally typed in capital letters). 108 Civil Litigation 7.1.5 Professional conduct Pursuant to para. 1.4 of the SRA Code of Conduct for Solicitors, a solicitor must not mislead or attempt to mislead the court or allow or be complicit in the misleading acts of others. In respect of drafting a statement of case, this includes only making assertions and putting forward statements and representations which are properly arguable (para 2.4). A breach of the requirement not to state a serious allegation for which there is no reasonable support will be a breach of the contractual duty owed by the solicitor to provide a competent service under para 3.2 (Mackenzie v Rosenblatt Solicitors (a Firm) EWHC 331 (Ch)). What if the client has filed a statement of case and subsequently tells their solicitor before the litigation ends that it contains a material error and the effect of that error is to mislead the court? In those circumstances, 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. In order to keep client confidentiality (see para 6.3), the solicitor should not inform the court or any other party of the reasons for ceasing to act. 7.2 CONTENTS OF THE PARTICULARS OF CLAIM 7.2.1 What must be included? 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) (see below). 7.2.1.1 Purpose The primary function of the particulars of claim is to state concisely the facts upon which the claimant relies. The claimant should state all facts necessary for the purpose of showing that they have a complete cause of action. This might include, for example, a defendant’s knowledge of a material fact that demonstrates a particular head of damage claimed is not too remote. This is often relevant where loss of a particular contract and/or profits is claimed. Where the material facts stated in a claimant’s particulars of claim conflict with those in the witness statements later filed in support of that case, that may prove fatal to the claim or, at the very least, will cast significant doubt on it: see Puharic v Silverbond Enterprises Ltd EWHC 351 (QB). If a party’s factual (and indeed, expert) evidence changes the nature of the party’s case, the party should apply to amend its statement of case accordingly (see 7.6). Practice Direction 16 goes into more detail as to what must be, or may be, included in the particulars of claim. There are particular requirements for certain types of cases, eg recovery of land and hire purchase claims. 7.2.1.2 Claim based on written contract More generally, where a claim is based upon a written agreement, then by 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 (but where the contract is, or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents). Therefore, where the claim arises out of a breach of a written contract, a copy of the relevant contract should be attached to, or served with, the particulars of claim (see paragraph 1 of the Example at 7.2.1.6 below).  Statements of Case 109 7.2.1.3 Claim based on oral contract By 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. This includes a pre-contract statement relied on as an express or implied term (see paragraph 4 of the Example at 7.2.1.7 below). 7.2.1.4 Other particular matters Paragraphs 8.1–8.2 of PD 16 set out further matters that must be specifically included in the particulars of claim. 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 a claim for mitigation expenditure. As to (5) above, a claim for damages for the alleged misuse of confidential information requires the claimant to allege and particularise the essential fact that the defendant knew that the disclosures were unauthorised (Media Entertainment NV v Karyagdyev EWHC 1138 (QB)). Likewise, if a head of damage is alleged not to be too remote because the defendant had knowledge of relevant facts, the allegation and facts should be included. As to (8) above, it is for the defendant to state in their defence and prove at trial any alleged failure of the claimant to mitigate loss (see 7.3.4). There is no obligation on a claimant to state anything about the issue in their particulars of claim, unless the claimant is seeking damages for additional losses incurred in a reasonable attempt to mitigate their loss. 7.2.1.5 Interest Rule 16.4(2) sets out the details that must be supplied where, as will usually be the case, the claimant is seeking interest. In such cases, the claimant must: (a) state whether they are 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. A claimant may be entitled to claim interest pursuant to a particular clause in a contract. A 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% or 2% pa or more over base rate in commercial cases). 110 Civil Litigation Where the contract does not provide for payment of interest, the claimant may nevertheless be entitled to claim a higher rate of interest than the statutory rate if the Late Payment of Commercial Debts (Interest) Act 1998 applies. A claimant who claims for interest under contract or the 1998 Act may well seek statutory interest under s 35A of the SCA 1981 or s 69 of the CCA 1984 in the alternative, just in case the court refuses to award interest under the contract or the 1998 Act. In all cases a claimant can seek interest pursuant to statute. In the High Court this would be under s 35A of the SCA 1981, and in the County Court under s 69 of the CCA 1984. For further details see 2.7.2 and the flowchart in Appendix C(4). There now follow two examples of particulars of claim, both concerning a breach of contract claim. In the first example the claim is for a specified amount of money. Interest is claimed under the Late Payment of Commercial Debts (Interest) Act 1998 where a reference rate of 0.5% pa has been assumed.  Statements of Case 111 7.2.1.6 Example of particulars of claim in a County Court debt claim (particulars of claim set out on claim form) In the Civil National Business Centre Fee Account no. ABCD12345 Claim Form Help with Fees - Ref no. HW F– – (if applicable) For court use only You may be able to issue your claim online which may Claim no. N185439 save time and money. Go to www.moneyclaim.gov.uk Issue date 4 August 2023 to find out more. Claimant(s) name(s) and address(es) including postcode Brewsters Limited, Unit 12, Brownside Industrial Estate, SEAL Reading, Berkshire RG2 6DS Defendant(s) name and address(es) including postcode Gates Launderettes Limited, 73 Cider Street, Slough, Berkshire SL1 1PP Brief details of claim The claim is for an unpaid debt of £63,450 in respect of 3 industrial drycleaners and 6 industrial washing machines supplied by the Claimant to the Defendant. Value The claim is for a specified sum of £63,450 plus accrued interest of £2,022.93 and compensation of £100. Defendant’s £ name and Gates Launderettes Limited, address 73 Cider Street, Amount claimed 65,572.93 for service Slough, including Court fee 3,278.64 postcode Berkshire SL1 1PP Legal representative’s 100.00 costs Total amount £68,951.57 For further details of the courts www.gov.uk/find-court-tribunal. When corresponding with the Court, please address forms or letters to the Manager and always quote the claim number. N1 Claim form (CPR Part 7) (06.22) © Crown Copyright 2022 112 Civil Litigation Claim no. N185439 You must indicate your preferred County Court Hearing Centre for hearings here (see notes for guidance) Reading Do you believe you, or a witness who will give evidence on your behalf, are vulnerable in any way which the court needs to consider? Yes. Please explain in what way you or the witness are vulnerable and what steps, support or adjustments you wish the court and the judge to consider. ✔ No Does, or will, your claim include any issues under the Human Rights Act 1998? Yes ✔ No  Statements of Case 113 Claim no. N185439 Particulars of Claim attached to follow 1. By clause 1 of a written agreement (the ‘Agreement’) dated 3 March 2023 the Claimant agreed to sell to the Defendant machinery, namely 3 Chloridal dry cleaning machines and 6 Isadal washing machines for an agreed price of £63,450.00. A copy of the Agreement is attached. 2. By clause 4 of the Agreement payment of the agreed price was due within 7 days of delivery. 3. In pursuance of clause 6 of the Agreement the machinery was delivered to the Defendant’s premises at 6, Station Road, Reading on 17 March 2023. 4. In breach of the Agreement the Defendant has failed to pay the agreed price or any part thereof. 5. The Claimant claims the sum of £63,450.00. 6. The Claimant claims interest on the sum of £63,450.00 and compensation under The Late Payment of Commercial Debts (Interest) Act 1998. AND THE CLAIMANT CLAIMS 1. The sum of £63,450.00 2. Interest pursuant to The Late Payment of Commercial Debts (Interest) Act 1998. For the purposes of the Act, both parties acted in the course of business. The statutory interest rate began to run from and including 25 March 2023 (the 8th day after delivery) at 8% over the reference rate of 0.75% then in force, totaling 8.75% per annum. Interest due to the date of issue is £2,022.93 (25 March 2023 to 4 August 2023 inclusive being 133 days) and is continuing until judgment or sooner payment at the daily rate of £15.21. 3. Compensation for late payment pursuant to The Late Payment of Commercial Debts (Interest) Act 1998 in the sum of £100. DATED: 4 August 2023 114 Civil Litigation Statement of truth Note: you are reminded that a copy of this claim form must be served on all I understand that proceedings for contempt of court may be other parties. brought against a person who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. ✔ I believe that the facts stated in this claim form and any attached sheets are true. The claimant believes that the facts stated in this claim form and any attached sheets are true. I am authorised by the claimant to sign this statement. Signature ✔ Claimant Litigation friend (where claimant is a child or protected party) Claimant’s legal representative (as defined by CPR 2.3(1)) Date Day Month Year 04 08 2023 Full name BRIAN CHARLTON Name of claimant’s legal representative’s firm Collaws If signing on behalf of firm or company give position or office held Managing Director  Statements of Case 115 Claimant’s or claimant’s legal representative’s address to which documents should be sent. Building and street 14 Ship Street Second line of address Town or city Weyford County (optional) Guildshire Postcode W E 1 8 H Q If applicable Phone number 01904876553 DX number 1599 Weyford Your Ref. BM/XYZ/Brewsters Email [email protected] Find out how HM Courts and Tribunals Service uses personal information you give them when you fill in a form: https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service/about/personal-information-charter 116 Civil Litigation 7.2.1.7 Example of particulars of claim in a High Court claim for breach of contract IN THE HIGH COURT OF JUSTICE 2023 KB 876 KINGS’S BENCH DIVISION READING DISTRICT REGISTRY BETWEEN INDUSTRIAL MANUFACTURING LIMITED Claimant and HEATECHS LIMITED Defendant PARTICULARS OF CLAIM 1. At all material times the Claimant was a manufacturer of small industrial machinery parts and the Defendant carried on business as a manufacturer and supplier of central heating boilers and systems. 2. By a written contract made on 25 April 2023 between the Claimant and Defendant, the Defendant agreed to sell to the Claimant a central heating gas boiler and integrated water pump described in clause 1 as a Heatechs Powerheat Unit Model 312K (‘the Unit’) for the sum of £70,000. A copy of the contract is attached. 3. The Claimant bought the Unit from the Defendant who sold it in the course of its business. It was an implied term of the contract that the Unit should be of satisfactory quality. 4. Further, during a telephone conversation at about 11.30 am on 20 April 2023, the Claimant by its contracts manager, Ian Jones, expressly or by implication made known to the Defendant (represented by their sales manager, Polly Rees) the particular purpose for which it required the Unit, namely for the purpose of installation in the Claimant’s factory at 15 Normandale Lane, Reading ‘as part of a heating system required to be in continuous use for 7 days per week’. It was an express and/or implied term of the contract that the Unit to be delivered by the Defendant should be reasonably fit for that particular purpose. 5. In purported performance of the contract the Defendant delivered the Unit on 24 June 2023 when the Claimant paid the Defendant the agreed sum of £70,000. The Unit was installed by the Claimant into its factory heating system on or about 6 July 2023. 6. In breach of the express and/or implied terms the Unit delivered by the Defendant was not of satisfactory quality and was not reasonably fit for its particular purpose. PARTICULARS OF BREACH 6.1 The impeller retaining nut on the integrated water pump was insufficiently secure because the thread was 0.4cm wide whereas the maximum that it should have been was 0.2cm wide. 7. As a consequence of the breaches of terms the integrated water pump failed to operate and the boiler in the Unit became or had become drained of water on 8 August 2023 and overheated as a result. When the pump effectively re-engaged cold water flowed into the boiler causing it to explode and rupture on 8 August 2023 and the pipe connections to distort. As a result the boiler house had to be pumped out and repaired and a new boiler installed. During this time the Claimant lost 9 days of production. 8. By reason of the above the Claimant has suffered loss and damage.  Statements of Case 117 PARTICULARS OF LOSS AND DAMAGE 8.1 Cost of new boiler £72,500 8.2 Cost of installation of new boiler £4,700 8.3 Cost of pumping out boiler house and repairing damaged premises £17,625 8.4 Consequential losses as the result of production losses (estimated) £25,000 9. In respect of damages awarded the Claimant is entitled to interest pursuant to s 35A of the Senior Courts Act 1981 at such rates and for such period as the Court thinks just. AND THE CLAIMANT CLAIMS: (1) Damages pursuant to paragraph 8 above; (2) Interest pursuant to paragraph 9 above. Dated 8 December 2023. Singleton Trumper & Co SINGLETON TRUMPER & CO STATEMENT OF TRUTH I believe that the facts stated in these Particulars of Claim are true. I am duly authorised by the Claimant to sign this statement. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Signed: D Smith DAVID SMITH Director of Claimant company Dated: 8 December 2023 The Claimant’s Solicitors are Singleton Trumper & Co of Bank Chambers, Streatham, Reading RD62 5PA where they will accept service of proceedings on behalf of the Claimant. To the Defendant To the Court Manager. 7.2.2 Particulars of breach and damage It is necessary to include detailed particulars of some aspects of the claim. For example, particulars of the breach of a contract or tortious duty must always be stated so that the defendant knows exactly the manner in which they are alleged to have been in breach. Similarly, the detail of the claim for damages is most conveniently set out in ‘particulars of loss and damage’ where each head of damage is itemised. See paras 6 and 8 in the example at 7.2.1.7. 7.2.2.1 The summary for relief The relief or remedy claimed must be specifically stated in the particulars of claim. Traditionally, although not a requirement of the CPR 1998, it is often repeated in summary form towards the end of the particulars of claim, immediately before the date, and will vary depending upon the subject matter of the claim. Pre-CPR 1998, it was known as the ‘prayer for relief.’ 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. 118 Civil Litigation 7.2.3 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 (see 5.3.2 and the example at 7.2.1.7). 7.2.4 Practical points Whilst the CPR 1998 provide for the content and format of statements of case, practitioners will adopt their own style within that framework. For example, in the ‘Industrial Manufacturing Limited v Heatechs Limited’ particulars of claim at 7.2.1.7, paragraph 3 states that the sale was in the course of the defendant’s business. This is because the claimant wishes to rely upon the terms implied by the Sale of Goods Act 1979, which apply only where the sale was made in the course of the defendant’s business. However, many practitioners do not consider it necessary to state this explicitly, as they rely upon the description of the defendant’s business in the opening paragraph and the subsequent entry into the contract as satisfying this requirement. When looking at precedents, you will see that this additional paragraph appears in some but not others – neither is wrong, they are merely alternatives. Another point to consider is the chronology of the material facts in the same example. We refer first (in paragraph 2) to the contract that was made on 25 April 2023 and later (in paragraph 4) to a conversation which took place on 20 April 2023. This is because the conversation became incorporated into the contract as a term. This is the traditional way of setting out such material. However, an alternative would be to deal with the conversation first, then second with the contract and, third, to refer back to the conversation when stating the relevant term of the contract. A vital point to remember is that 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. You can see this in the Industrial Manufacturing Limited v Heatechs Limited example at 7.2.1.7. Namely: (a) the terms relied on are set out in paragraphs 3 and 4, whilst exactly the same terms are said to have been broken in paragraph 6; (b) the factual consequences of the breach are set out in paragraph 7 (boiler exploded, boiler house pumped out and repaired, new boiler installed and nine days of production lost), and these are then quantified and particularised in paragraph 8. 7.2.5 Template A template to help you draft particulars of claim is set out at Appendix B(3). CASE STUDY: DRAFTING THE PARTICULARS OF CLAIM Let us now consider how the particulars of claim were drafted in the case study at Appendix D(4). In Chapter 5 we demonstrated how the claim form would have been drafted. The heading of the particulars of claim will be identical, namely: In the High Court of Justice [Number] King’s Bench Division Weyford District Registry  Statements of Case 119 BETWEEN MR WILLIAM ULYSSES SIMPSON (1) MRS RUPINDER SIMPSON (2) Claimants -and- MR GEOFFREY IAN TEMPLAR Defendant Then we should identify the document itself. Traditionally this is done in the centre of the page, and sometimes the title appears in capital letters in tramlines or underlined. However, the rules do not dictate how this is done. PARTICULARS OF CLAIM You will recall that in Chapter 3 the parties set out their respective positions in the pre- action correspondence. Drafting the particulars of claim is like preparing the letter before claim but, as we have seen above, we have to do so according to a totally different set of rules. Remember that the cause of action here is negligence. So, the initial material facts need to establish the duty of care situation, ie: Paragraph 1 that the Claimants own the property, as defined, and Paragraph 2 that on the material day and time the defendant drove his car onto that property. Next in paragraph 3 the allegation of breach of that duty, namely negligence by the defendant, is made, followed by detailed particulars of that negligence. The purpose is to enable the defendant to understand exactly what he is alleged to have done wrong so that he can respond. In this case you will recall from Chapter 3 that the claimants obtained a report from an accident reconstruction expert. From that report their solicitors will be able to identify the allegations showing the defendant fell below the required standard of care and so breached the duty of care that he owed to the claimants. Note that the particulars of negligence are listed for ease of reference. The defendant will know that the claim against him is that he was driving too fast and lost control of the vehicle. This was apparent from his swerving on and off the driveway – an allegation based on the evidence of Mr Simpson, who was an eyewitness, and the conclusions drawn by the Simpsons’ accident reconstruction expert from the tyre marks on the driveway. Note, however, that these sources of the allegation are not stated. Remember, the detailed evidence from witnesses and experts comes next at Stage 3. Here, at Stage 2, only material facts should be stated, and these include the final particulars of negligence against the defendant of failing to use his brakes properly and manoeuvre the car so as to avoid the collision. Next, in paragraph 4 it is stated that the defendant’s negligence caused loss to the claimants. So that the defendant knows how much is being claimed, figures are stated where these are available, but otherwise estimates are given of each item claimed (otherwise known as the heads of damage). What do the claimants want on any damages awarded? Interest – so this is stated at paragraph 5. The principles relating to the award of interest on damages were outlined at 7.2.1.5 but the detail can be found at 2.7. As this is an unspecified claim, the claimants cannot calculate how much interest will be awarded, as they have to rely on the court’s discretionary power to award interest at such rate and for such period as the court sees fit. The particulars of claim are dated and signed by the claimants’ solicitors in the name of the firm: see PD 5A, para 2.1. 120 Civil Litigation A statement of truth is then included. Whilst a party’s solicitor may sign the statement of truth, it is preferable, where possible, for the client to sign it. See 5.3.1.9 for a further discussion of the significance of the statement of truth and the options available. Here both claimants sign but expressing their own personal and individual belief in the truth of the contents of the document. The document ends with the name and address of the claimants’ solicitors and confirms that the address is the claimants’ address for service. One copy of the particulars of claim will be filed at the court and another served on the defendant. 7.3 THE DEFENCE 7.3.1 Contents As we saw in Chapter 6, the defendant has a limited amount of time in which to file a defence with the court, depending upon whether or not an acknowledgement of service has been filed. Rule 16.5 sets out what must be contained in the defence: (1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating— (a) which of the allegations are denied; (b) which allegations they are unable to admit or deny, but which they require the claimant to prove; and (c) which allegations they admit. (2) Where the defendant denies an allegation— (a) they must state their reasons for doing so; and (b) if they intend to put forward a different version of events from that given by the claimant, they must state their own version. (3) If a defendant— (a) fails to deal with an allegation; but (b) has set out in the defence the nature of their case in relation to the issue to which that allegation is relevant, the claimant is required to prove the allegation. (4) Where the claim includes a money claim, the claimant must prove any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation. (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation. (6) If the defendant disputes the claimant’s statement of value under rule 16.3 they must— (a) state why they dispute it; and (b) if they are able, give their own statement of the value of the claim. (7) If the defendant is defending in a representative capacity, they must state what that capacity is. (8) If the defendant has not filed an acknowledgement of service under Part 10, they must give an address for service. A party is required to verify that the facts stated in the defence are true by way of a statement of truth (see 5.3.1.9 and the example at 7.3.7). 7.3.2 Admissions, non-admissions, denials and assertions The defence must provide a comprehensive response to the particulars of claim, and therefore, in respect of each allegation in the particulars of claim, there should be an admission, a denial or, where the defendant has no knowledge of the matter stated, a requirement that the claimant prove the point, ie a non-admission. Any denial must be explicit, and a defendant must state their reasons for denying the allegation in the particulars  Statements of Case 121 of claim. If the defendant wishes to put forward a version of events different from that given by the claimant, the defendant must state their own version. A bare denial is not acceptable. Moreover, by the so-called ‘rule of implied admissions’, a defendant who fails to deal with an allegation is taken to admit it: see r 16.5(5) at 7.3.1 above. 7.3.3 Point-by-point response In order to ensure that every allegation in the particulars of claim is dealt with and nothing is admitted through omission (see r 16.5(5)), the defence usually answers each paragraph of the claim in turn. If a paragraph contains more than one allegation, each should be answered point by point. This is the approach adopted in the defence to the breach of contract claim between Industrial Manufacturing Limited and Heatechs Limited in the example set out at 7.3.7 below. As noted above, non-admissions are denials but the defendant is unable to give any version of their own because the facts alleged in the claim are not within their knowledge. Is there any obligation on a defendant to attempt to acquire knowledge in these circumstances? No, held the Court of Appeal in SPI North Ltd v Swiss Post International (UK) Ltd EWCA Civ 7: Plainly, a defendant is able to admit or deny facts which are within his own actual knowledge, or which he is able to verify without undue delay, difficulty or inconvenience, by reference to records and other sources of information which are under his control or otherwise at his ready disposal. Furthermore, in the case of a corporate defendant, which can only act through human agents and has no mind of its own, its actual knowledge must clearly be understood as that of its individual officers, employees or other agents whose knowledge is for the purposes of applying rule 16.5 to be attributed to it, in accordance with the relevant rules of attribution: see the well-known observations of Lord Hoffmann in Meridian Global Funds Management Asia Limited v Securities Commission 2 AC 500 (PC) at 506-507. But does paragraph (1)(b), properly construed, go further, and require a defendant to make reasonable enquires of third parties before it can be said that he is ‘unable’ to admit or deny a particular allegation? In my judgment, a number of factors point towards the conclusion that a defendant is ‘unable to admit or deny’ an allegation within the meaning of rule 16.5(1)(b) where the truth or falsity of the allegation is neither within his actual knowledge (including attributed knowledge in the case of a corporate defendant) nor capable of rapid ascertainment from documents or other sources of information at his ready disposal. In particular, there is no general obligation to make reasonable enquiries of third parties at this very early stage of the litigation. Instead, the purpose of the defence is to define and narrow the issues between the parties in general terms, on the basis of knowledge and information which the defendant has readily available to him during the short period afforded by the rules for filing his defence. (per Henderson LJ) 7.3.4 Causation and mitigation of loss Very often, on the issue of causation, the defence will allege that the claimant caused the claimant’s own loss. If known, the defendant should assert how. Also, it may be appropriate for the defendant to allege that the claimant failed to mitigate the claimant’s loss. Details of the allegation should be given, for example an explanation of why the head of damage is said to be unreasonably large and an assertion as to what would have been a reasonable amount. 7.3.5 Defence of limitation By PD 16, para 11.3, a defendant must give details of the expiry of any relevant limitation period that is relied on in their defence. 7.3.6 Address for service If the defendant has not filed an acknowledgement of service, they must give an address for service that includes their postcode (r 6.23(1)). 122 Civil Litigation 7.3.7 Example of a defence in a High Court claim for breach of contract IN THE HIGH COURT OF JUSTICE 2023 KB 876 KING’S BENCH DIVISION READING DISTRICT REGISTRY BETWEEN INDUSTRIAL MANUFACTURING LIMITED Claimant and HEATECHS LIMITED Defendant DEFENCE 1. The Defendant admits paragraphs 1 to 4 of the Particulars of Claim. 2. The delivery of the Unit referred to in paragraph 5 of the Particulars of Claim was wholly in accordance with the terms of the contract and constituted full and complete performance thereof by the Defendant. Payment of the agreed sum of £70,000 by the Claimant is admitted. No admission is made as to the installation of the Unit by the Claimant as the Defendant has no knowledge of that matter. 3. The Defendant denies it was in breach of contract as alleged in paragraph 6 of the Particulars of Claim, or at all. The Defendant asserts that the Unit supplied was of satisfactory quality and fit for its purpose. In particular, as to sub-paragraph 6.1, the impeller retaining nut on the water pump was sufficiently secure by means of a 0.4cm thread. It is therefore denied that the maximum width that the thread should have been was 0.2cm. 4. The Defendant makes no admission as to the matters stated in paragraph 7 as the Defendant has no knowledge of these matters. 5. As to paragraph 8 it is not admitted that the Claimant has suffered the alleged or any loss and damage as the Defendant has no knowledge of these matters. 6. If, which is not admitted, the Claimant suffered the loss and damage alleged in paragraph 8, it is denied that this occurred as a result of the alleged or any breach of term by the Defendant. Any such loss or damage was caused by the Claimant’s installation and/or subsequent use of the Unit. 7. If, which is not admitted, the Claimant suffered the loss and damage alleged in paragraph 8, the Claimant failed to mitigate that loss and damage. In particular, it was unreasonable to stop production for 9 days. 8. In all the circumstances it is denied that the Claimant is entitled to the relief claimed or any relief. Dated 5 January 2024. Haughton & Co HAUGHTON & CO STATEMENT OF TRUTH I believe that the facts stated in this Defence are true. I am duly authorised by the Defendant to sign this statement. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Signed: Darren Bennett Dated: 5 January 2024 DARREN BENNETT, Managing Director of the Defendant company The Defendant’s Solicitors are Haughton & Co, 19 High Pavement, Reading RD61 4UZ, where they will accept service of proceedings on behalf of the Defendant. To the Court Manager and the Claimant.  Statements of Case 123 7.3.8 Some points to note from the example The consequence of making admissions in the defence is that the claimant does not have to prove the point at trial. Such admissions are most often made in respect of facts which came into existence prior to the alleged breach of contract or negligent act, such as the date, the parties and the terms of the contract. See paragraph 1 of the example in 7.3.7 above. When answering each paragraph of the claim, the defendant should clearly deny any allegations which are disputed and make clear admissions in respect of the factual issues which are not in dispute, eg paragraph 1 in the above example. Any allegations of loss or damage which are disputed should be ‘not admitted’ in the defence, such as in paragraph 4 of the example. The defendant should also include any additional facts in the defence which make their side of the story clearer (see paragraphs 3, 6 and 7 of the example; where paragraph 3 answers the allegation of breach of contract, paragraph 6 deals with the issue of causation and paragraph 7 alleges failure by the claimant to mitigate their loss). 7.3.9 Counterclaim If a defendant wishes to make their own claim against a claimant, they should do this by way of a counterclaim. The defence and counterclaim will form one document. Counterclaims are considered in more detail in Chapter 8. 7.3.10 Templates A template to help you draft a defence can be found at Appendix B(4), and a template for a defence and counterclaim at Appendix B(5). 7.4 REPLY TO DEFENCE A claimant may wish to file a reply to the defence but is under no obligation to do so. The claimant should do so if they need to allege facts in answer to the defence that were not included in the particulars of claim. By r 16.7(1), a claimant who does not file a reply to the defence is not taken to admit the matters raised in the defence. There is therefore no corresponding rule of implied admission like that we saw when looking at the defence itself (see 7.3.2). In practice, replies to defences are most common where the defendant has made a counterclaim. Then a claimant must file a defence to the counterclaim to prevent default judgment being entered against them and will usually incorporate a reply to the defence as well. 7.5 THE ROLE OF STATEMENTS OF CASE 7.5.1 Defining the issues How do the statements of case define the issues between the parties? If the particulars of claim have set out the factual allegations, and the defence answered each allegation by way of admission, non-admission or denial, then by comparing the two documents we can identify the issues in dispute (namely, those not admitted and denied). So, if we compare these documents in the Industrial Manufacturing Limited v Heatechs Limited example at 7.2.1.7 and 7.3.7, we have the following agreed issues and issues in dispute: 124 Civil Litigation EXAMPLE 1 – AGREED ISSUES Particulars Defence Issue of claim Paragraph 1 Paragraph 1 Defendant a manufacturer and supplier of central heating boilers and systems. Paragraph 2 Paragraph 1 Written contract made on 25 April 2023 for the Unit. Paragraph 3 Paragraph 1 Implied term that Unit to be of satisfactory quality. Paragraph 4 Paragraph 1 Express or implied term that Unit to be reasonably fit to heat Claimant’s factory continuously seven days a week. Paragraph 5 Paragraph 2 Unit delivered to Claimant on 24 June 2023 when payment of £70,000 made. EXAMPLE 2 – ISSUES IN DISPUTE Particulars Defence Issue of claim Paragraph 5 Paragraph 2 Claimant installed Unit on 6 July 2023. Paragraph 6 Paragraph 3 Defendant breached contract as impeller retaining nut had insufficient thread. Paragraph 7 Paragraph 4 On 8 August 2023 boiler overheated and exploded. Paragraph 8 Paragraph 5 Claimant suffered loss due to Defendant’s breach. Paragraph 8 Paragraph 5 Claimant’s loss consists of cost of new boiler and its installation, cost of pumping out and repairing boiler house and loss of profit. Paragraph 8 Paragraph 6 Claimant caused own loss by way installed and/or subsequently used Unit. Paragraph 8 Paragraph 7 Claimant failed to mitigate its loss. CASE STUDY: THE DEFENCE Let us consider how the defendant’s solicitors set about drafting the defence at Appendix D(5). Look again at the claimants’ particulars of claim at Appendix D(4). What facts is the defendant going to admit, not admit and dispute? For the disputed facts, what is the defendant’s own version? The defendant will admit that at the material time he was the driver of the car and that his vehicle collided with the extension of the claimants’ property. The defendant does not strictly know that the Simpsons own the property and he could make a non-admission requiring the claimants to prove it. However, the defendant is prepared to admit it here. He will, of course, dispute that he drove negligently and that he is liable for any loss. At this stage he will not make any admissions about the amount of the claimants’ loss as he has no knowledge of that.  Statements of Case 125 So for the purposes of the defence the response to the particulars of claim in the case study will be: Particulars Issue Response of Claim Paragraph Claimant is owner of Admit – defendant does not dispute this 1 Bliss Lodge Paragraph Date and time of Admit – these facts are agreed 2 accident, details of vehicle Paragraph Allegation of Deny negligence and explain why. 3 negligence resulting What about the collision? This is admitted. His in collision with car did collide with the extension but he denies extension together it was his fault. with Particulars of Negligence. Paragraph Allegation of loss As above the defendant will admit the collision 4 caused by the but will deny that the damage was caused by negligence of the his negligence. defendant and He will make no admissions as to the losses particulars of loss. claimed as he has no knowledge of these and will require the claimants to prove the amount of their losses. Paragraph Interest There is no need to respond to the claim for 5 interest. Interest can be awarded here only if the claimants are awarded damages, and the defendant will deny that the claimants are entitled to any damages. In addition, the defendant can allege in the alternative that the claimants were contributory negligent. But does that deal with all the issues the defendant wants the court to decide? Look again at Appendix D(3). From this letter we can see that the defendant has indicated an intention to defend the claim and make a claim of his own. He could start separate proceedings, but this would not be cost-effective and so his best course of action is to make his own claim by way of a counterclaim (7.3.9 above). In Chapter 8 we shall consider how to draft that part of the document. 7.6 AMENDMENTS TO STATEMENTS OF CASE (PART 17) In a perfect world, nobody would ever have to amend their statements of case. However, sometimes mistakes are made, and on other occasions fresh information comes to light after the statement of case has been served. Part 17 of CPR 1998 provides the ways in which statements of case can be amended. 7.6.1 Amendments before service A party may amend their statement of case at any time before it has been served. 7.6.2 Amendments with permission After a party has served their statement of case, they can amend it only with either: 126 Civil Litigation (a) the written consent of all of the parties; or (b) the permission of the court. On making an application for permission to amend the statement of case, the applicant should file a copy of the statement of case with the proposed amendments along with the application notice (see Chapter 10). In deciding whether or not to exercise its discretion to grant the application, the court will consider the following: (a) The overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. (b) Where a very late application to amend is made, the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to the party, their opponent and other court users requires the party to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission. (c) A very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept. (d) Lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done. (e) Gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation. (f ) It is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay. (g) A much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations, because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so. See New York Laser Clinic Ltd v Naturastudios Ltd LTL 14 Feb (CA), Quah Su-Ling v Goldman Sachs International EWHC 759 (Comm) and CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs EWCA Civ 480. It is an elementary principle that the later the amendment, the greater the need for particularity. (per Soole J in Rijckaert v El-Khouri EWHC 409 (KB) at ) If the court grants permission for the amendment, the applicant must file the amended statement of case and serve the order and the amended statement of case on all other parties. The statement of case will be endorsed with the words: Amended [describe the type of statement of case] by Order of [name of master/district judge] dated [ ].  Statements of Case 127 The amended statement of case need not show the original text unless the court directs otherwise. 7.6.3 Directions following amendment If the court gives permission to amend the statement of case, it may give directions regarding amendments to any other statement of case and service of the amended statements of case. It is common, for example, for a defendant to be allowed to amend their defence if the court has given the claimant permission to amend their particulars of claim. 7.6.4 Application to amend the statement of case outside the limitation period If a claim is made after the relevant limitation period has expired, the defendant has an absolute defence (see 2.5.2.1). So, if the amendment will add or substitute a new claim, the new claim must arise out of the same facts or substantially the same facts as the claim which the applicant has already made in the proceedings (see, eg, Bank of Scotland Plc v Watson EWCA Civ 6 and Mulalley & Co Ltd v Martlet Homes Ltd EWCA Civ 32). If the amendment is to correct a mistake as to the name of a party, the mistake must be genuine and one that would not have caused reasonable doubt as to the identity of the party in question. If the amendment alters the capacity in which a party brings their claim, the new capacity must be one that party had when the proceedings commenced or has since acquired. 7.6.5 Statements of truth By r 22.1(2), amendments to the statement of case have to be verified by a statement of truth (see 5.3.2), unless the court orders otherwise. 7.6.6 Costs A party applying for an amendment will usually be responsible for the costs of and caused by the amendment’s being allowed (see 10.3). 7.6.7 Amendments without permission Where a party has amended their statement of case without requiring the court’s permission (ie, in the case of an amendment by consent or before service), the court may disallow the amendment (r 17.2). A party may apply to the court asking it to exercise its discretion to disallow within 14 days of service of the amended statement of case. 7.7 REQUESTS FOR FURTHER INFORMATION (PART 18) 7.7.1 The request A party to the proceedings, or the court itself, may wish another party to give further information about its case. By r 18.1(1), the court may at any time order a party to: (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. The rule expressly says that the matter about which clarification or further information can be sought must be one ‘which is in dispute in the proceedings’. That wording, in my judgment, makes it clear that there are two cumulative aspects to this restriction: the matter must be ‘in dispute’, and that dispute must be ‘in the proceedings’. (per Mr Salter QC in Al-Saud v Gibbs EWHC 706 (Comm) at ) This means, for example, that requests under Part 18 cannot be used for the purpose of obtaining material for cross-examination as to credit (Thorpe v Chief Constable of Greater Manchester 1 WLR 665), or to obtain material to support different claims between the 128 Civil Litigation same parties or claims against different parties (Trader Publishing Ltd v Autotrader.com Inc EWHC 142 (Ch)). As Morgan J observed in Barness v Formation Group Plc EWHC 1228 (Ch) at : [R]ule 18 deals with the current position at the time of the application to the court and requires the court to identify: what matter is currently in dispute? It is only in relation to such a matter that an order can be made clarifying the matter or giving additional information in relation to the matter. If one of the parties requires further information then, before applying to the court for an order, that party should first serve a written request on the other party stating a date for the response, which must allow a reasonable time for the response. A request should be concise and strictly confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to meet. The most common request is by a defendant seeking further information from a claimant who has failed to give sufficient particulars of breach and/or damage (see 7.2.2). Requests must be made as far as possible in a single comprehensive document and not piecemeal. If the text of the request is brief and the reply is likely to be brief, the request may be made by letter. If so, the letter must state that it contains a request made under Part 18 and must not deal with any other matter. Otherwise, the request should be made in a separate document. Any request must: (a) be headed with the name of the court and the title and number of the claim; (b) state in its heading that it is a Part 18 request, identify the applicant and the respondent, and state the date on which it is made; (c) set out each request in a separate numbered paragraph; (d) identify any document and (if relevant) any paragraph or words in that document to which the request relates; (e) state the date for a response. If the request is not in the form of a letter, the applicant may, if this is convenient, put the request on the left-hand side of the document so that the response may appear on the right- hand side. If so, the applicant should serve two copies of the request on the respondent. 7.7.2 Response to the request The response must be in writing, dated and signed by the respondent or their solicitor. If the original request was made in a letter, the response can also be in the form of a letter or a formal reply. If in a letter, it should state that it is a response to the request and should not deal with any other matters. The response should set out the same information as the request and then give details of the response itself. The respondent must file at court and serve on all parties a copy of the request and the respondent’s response. The response must be verified by a statement of truth (see 5.3.2). EXAMPLE In InterDigital Technology Corp v Nokia Corp EWHC 504, the parties were already involved in litigation known as UK2 and UK3. The defendant’s defence to these proceedings included the following assertion: 9.1 This action is not brought for real commercial reasons but for tactical reasons relating to the ongoing litigation between InterDigital and Nokia...  Statements of Case 129 The claimant asked for further information about para 9.1 as follows: Request Of paragraph 9.1 of the Defence. Please specify each and all of the ‘tactical reasons’ for which it is alleged this action has been brought. The defendant’s answer included the following: Response InterDigital's full motives are known only to it. But without limitation to the scope of paragraph 9.1, InterDigital's reasons for commencing this litigation include the tactical reasons listed below: (1) in retaliation for and to punish Nokia for bringing the UK2 proceedings; (2) to deter Nokia from pursuing UK2 and/or from bringing further proceedings in respect of InterDigital 's claimed essential patents; (3) to force a more favourable settlement of UK2, in particular as a result of other matters referred to herein; (4) to trap Nokia into adopting inconsistent positions in UK2 and UK3; (5) to distract Nokia and in particular its external legal and expert advisers and from UK2 by imposing further burdensome work on them in the run-up to the UK2 trial. CASE STUDY: PART 18 REQUEST A further example of a Part 18 Request is in the case study at Appendix D(7). There you will see that the Defendant has requested further information about certain aspects of the particulars of claim. Also see Cavendish Square Holdings BV v Tala El Makdessi LTL, 13 February (where the claimant was ordered under Part 18 to give further information of an assertion made in the particulars of claim that it had during a stated period of time acted within the terms of the contract between the parties). 7.7.3 Cases where the respondent does not respond to the initial request If the respondent objects to all or part of the request, or cannot comply with the request, they should inform the applicant, giving reasons and, where relevant, giving a date by which they will be able to comply with the request. They may do so by letter or by formal response. If the respondent considers that a response will involve disproportionate expense, they should explain briefly in their reply why they take this view. 7.7.4 Applications for court orders If no response is received or the response is considered to be inadequate, the applicant can apply for an order from the court (see Chapter 10). The application can be made without notice where no response has been given, at least 14 days have passed since the request was served and the time stated in it for a response has expired (see PD 18, para 5.5 and Sheeran v Chokri EWHC 2806 (Ch)). The court will grant an order only if it is satisfied that the request is confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their case or understand the case they have to meet. As Norris J observed in Pacific Biosciences of California, Inc v Oxford Nanopore Technologies Ltd EWHC 806 (Ch): A request for further information, under CPR 18, arises really as part of the responsibility of the court to manage cases and the parties to co-operate in the just and efficient disposal of the issues between them. The function of a request is to identify the material facts that are going to be relied upon at trial, but not to plead evidence that will be led to prove those facts. The identification of the 130 Civil Litigation material facts, ideally, ought to be with the same degree of particularity as will be relied on at the trial itself. That way, everyone knows where they stand. A major objective of case management is to ensure that statements of case do set out the parties’ cases, and define the dispute between them. As part of its responsibility for managing cases, the court must ensure that parties plainly state the factual ingredients of their case, so that the true nature and scope of the dispute can be identified. If the court orders a response but none is given, the court may make an unless order (see 9.3.4). How will the court determine whether or not a response given complies with the court’s order? See Owners of the Gravity Highway v Owners of the Maritime Maisie EWHC 1697 (Comm) (Butcher J at para 33). 7.8 SUMMARY: HOW SHOULD YOU APPROACH DRAFTING PARTICULARS OF CLAIM? 7.8.1 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. 7.8.2 Content 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: r 16.4(2) – the claimant must state whether they are 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 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. (4) Statement of truth: PD 16, para 3.2 cross-referencing PD 22, para 2.1. 7.8.3 General points (1) Be as brief and concise as possible. Include only material facts but ensure all material facts required to establish the claim 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) Evidence should not be included, and a general factual narrative is neither required nor helpful.  Statements of Case 131 (7) Attach documents only where it is proportionate and necessary to help particularise the case. 7.9 SUMMARY: HOW SHOULD YOU APPROACH DRAFTING A DEFENCE? 7.9.1 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. 7.9.2 Content: Rule 16.5 (1) In their defence, the defendant must state— (a) which of the allegations in the particulars of claim they deny; (b) which allegations they are unable to admit or deny, but which they require the claimant to prove; and (c) which allegations they admit. (2) Where the defendant denies an allegation— (a) they must state their reasons for doing so; and (b) if they intend to put forward a version of events different from that given by the claimant, they must state their own version. (3) A defendant who— (a) fails to deal with an allegation; but (b) has set out in their defence the nature of their case in relation to the issue to which that allegation is relevant, shall be taken to require that allegation be proved. (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless they expressly admit the allegation. (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation. 7.9.3 General points (1) Be as brief and concise as possible. Include only material facts but ensure all material facts that answer the allegations and constitute the defence are stated. (2) Answer each allegation point-by-point by reference to the numbered paragraphs of the particulars of claim. (3) Assert own case by way of defence and any contributory negligence, eg allege breach of duty then follow that with particulars listed one by one in separately numbered sub- paragraphs. (4) Use the same definitions as in particulars of claim and any additional ones, where appropriate. (5) Evidence should not be included, and a general factual narrative is neither required nor helpful. (6) Attach documents only where it is proportionate and necessary to help particularise the defence. 132 Civil Litigation