Statements of Case – Advice mainly to beginners, but we can all learn

PI_John_Morris_Collins By John Collins

Statements of Case

Advice mainly to beginners, but we can all learn

  1. The standard of statements of case these days, whether for the Claimant or the Defendant, but more particularly for the Claimant, is abysmal. Yet it should be simple and straightforward.  CPR 16.4 says clearly what has to be included in a Particulars of Claim and CPR 16.5 what must be included in a Defence.  7 deals with Replies to the Defence.  Of course, there are additional rules which can be found in the Practice Direction attached to Part 16, dealing with various types of claims.  But the essence is in the rules.

  1. A Particulars of Claim is supposed to include a concise statement of the facts on which the Claimant relies. That is more difficult than it seems.  A temptation today is to press a button on the computer and fill the gaps, much as used to be done in the old days of divorce petitions.  That is not how it should be done.
  1. In a road traffic accident, for instance, the facts of the accident are usually within a very small compass. The Claimant was either a driver or a passenger in a vehicle which was travelling in a particular location in a particular direction.  The Defendant’s vehicle was equally being driven either on the same road or on a side road.  The circumstances in which the two vehicles came to collide, if they did, are surely able to be set out simply, so that someone reading that first paragraph of the Particulars of Claim can see that this is either a collision at a junction or in circumstances where the leading vehicle had slowed down and the vehicle behind failed to slow down and collided with the vehicle in front, or alternatively the vehicle in front was reversing and collided with the vehicle behind.  Such are simply basic facts.  The second paragraph should include the grounds on which the Claimant says that the Defendant is liable.  Those grounds should be relevant.  It is not relevant to suggest that a car which had run into a vehicle in front of it failed to signal its intention.  The grounds in an ordinary road traffic accident should in general not exceed some six particulars of negligence or breaches of the Highway Code or other statutory obligation.  That does involve thinking about the accident and why it happened.
  1. Then of course one must include, as required by the Practice Direction, the Claimant’s date of birth and brief details of the Claimant’s personal injuries. (It is not enough to say that the personal injuries are set out in the report of Dr **).  Lastly there are the requirements with regard to pleading the loss and damage.
  1. Similarly with regard to injuries at work, one starts with a brief outline of the nature of the Claimant’s employment and then the nature of the defect or other matter upon which the Claimant relies. This can be more difficult, because the Claimant has to say precisely what was the nature of the cause of their accident or condition and that may involve giving full details of the conditions under which the Claimant had to work.  At this stage one does get to the situation where you may well be having to plead certain facts and then in the further allegations of breach of negligence, in reliance upon breaches of statutory duty, set out the particulars of why, arising from those facts, it is said that the employer is in breach of duty.  The emphasis I would lay is upon the need to sit and think about the case before producing the Particulars of Claim.
  1. The point which causes me concern is not only that much of what is said in many Particulars of Claim is irrelevant to the case and serves only to confuse the picture, but that in preparing a concise statement of the facts, you should be careful to adhere to the facts upon which your client relies and not the facts relating to the general picture. An example of what I have in mind is the recent case of Patel v Mirza [2015] 2 WLR 405.  The basic facts of that case were that Patel paid Mirza £620,000 to invest on his behalf.  In fact Mirza did not invest that money on his behalf.  So Patel demanded his money back.  Actually, the money was intended to be used for an illegal purpose.  But it never was so used.  Patel should have put his case simply: “This was my money; I paid it to you for a purpose; that purpose was not fulfilled; I am therefore entitled to my money back.”  Instead the Particulars of Claim went into great detail about the illegality of the whole transaction and so landed the Claimant in difficulties which it took the Court of Appeal to sort out and which has now indeed gone to the Supreme Court.  The issue of whether or not the transaction was so tainted by illegality that Mr Patel could not have his money back was an issue which the Defendant should have raised and if that had happened, it would have been a simple case, one where the Court could properly have held that the Defendant could not hold on to someone else’s money by pleading his own illegality.
  1. Similarly in cases where a limitation issue may well be raised. It does not follow that a Defendant is going to raise a limitation issue, simply because it could.  Very often there is a borderline area between a clear case of failure to comply with the provisions of the Limitation Act and a case which the court may well say is not caught by the Act.  Except in a case where the only issue between the Claimant and the Defendant is whether or not a claim which would otherwise succeed is statute-barred, I can see no justification for reciting the limitation provisions relevant to the particular Claimant and the Claimant’s answer in all the circumstances in the Particulars of Claim.  The Claimant should simply set out the facts on which he relies in order to succeed in his claim.  It is for the Defendant to raise defences.  Once the Defendant raises a defence of that kind, of course the Claimant should use his right to reply by setting out in the Reply the matters upon which he would rely in saying that the claim is not statute-barred.
  1. So, when drafting a Particulars of Claim, one should always ask oneself, What do I have to prove to establish my Client’s case? What are the facts upon which I rely in so establishing it? What do the rules require me to include in the Particulars of Claim (e.g. the date of birth of the Claimant)? What are the contentions of law or mixed law and fact (e.g. breaches of the Highway Code), upon which I would wish to rely in establishing my client’s claim? Once all these questions have been answered, you will usually have done sufficient.
  1. The moral is, Keep it as simple as you can. However, every rule has its exception and, to take an example, if your case is that your client was exposed to damaging noise and as a result suffered from deterioration in his hearing, it is necessary to set out in proper detail to what operations, identifying in detail the relevant machines and when and for how long your client was exposed, if possible giving particulars of the degree of noise exposure and of such matters as the extent to which your client was affected by the noise at the time (e.g. that the way they had to communicate with their fellow workers was by shouting into their ears). Such a case may well also involve, particularly if the exposure was before 1989, detailed reference to documentary material (e.g. “Noise and the Worker”) of which the employer should have been cognisant.
  1. I hope to turn matters of Defence and Reply in a further blog shortly.

JOHN M. COLLINS

Zenith Chambers

18th March 2015

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One comment

  1. […] Collins took us back to basics in Statements of Case – Advice mainly for beginners, but we can all learn (March […]

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