Drafting Documents for Small Claims Cases
Author | Patricia Pearl/Tim Parker |
Pages | 117-149 |
Chapter 6
Drafting Documents for Small Claims Cases
6.1 INTRODUCTION
Modern litigation demands that documents used in the court process are expressed clearly, with the minimum of jargon and legal language. Arcane legal phrases, including those in Latin, should not be used. It is vital that the case is set out clearly and accurately from the start. The benefits of the relative simplicity and speed of the small claims procedure will be lost if the case has to be changed or clarified at the last moment. The case management powers of the court can be used to strike out a claim which is imprecise or not properly explained.
This book is a procedural guide and cannot aspire to explaining the law relevant to claims which are heard on the small claims track. Litigants in person requiring guidance on whether to make a claim or how to defend a claim should seek legal advice. This can be accessed through solicitors, Citizens Advice Bureaux, specialist books on particular types of claims (e.g. holiday claims), consumer forums and specialist websites.
This chapter sets out the basic rules about preparation of statements of case relevant to small claims. We set out only one precedent for a personal injury claim, as most of these which come within the small claims track will follow the unique procedure created by the Road Traffic Accident Small Claims Protocol, described in Chapter 13.
The examples that follow in the rest of the chapter give the reader an idea of what particular documents may look like and how a case might be presented.
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6.2 LETTERS BEFORE ACTION
A letter before action may:
• prompt settlement before court action
• be considered at the final hearing
But must:
• comply with the Pre-Action PD (see paragraph 1.4)
Please refer to paragraph 6.7.1, Precedents A to D.
6.3 STATEMENTS OF CASE INCLUDING DEFENCES AND COUNTERCLAIMS
The formal documents by which the parties set out their case so as to define what is in dispute between them are collectively called ‘statements of case’. That term covers a claim form, particulars of claim, defence, third party claims, and replies to defences (CPR 2.3(1)). CPR Part 16 contains the rules about them.
6.3.1 Guidelines for preparing a claim or defence
Basics
• Failure to set out a claim or defence clearly can result in it being struck out
• The particulars of claim must be a concise statement of the facts relied on and, if possible, should be set out on the claim form
• A copy of any contractual conditions (‘the small print’) should be attached to the claim form
• The defence must be specific – stating exactly which parts of the claim are admitted/denied, and which matters the defendant has no knowledge of and wants the claimant to prove
• The defence must set out any alternative version of events contended for by the defendant
• The claim, defence and any counterclaim must be verified by a statement of truth
• A claimant must file a defence to counterclaim to avoid a default judgment on the counterclaim
6.3.2 Detailing the claim
The document which details the claim is the ‘particulars of claim’. It can be included in the claim form or provided separately.
It must give enough information for the defendant (and the judge) to understand the case – but not a blow-by-blow account of everything that happened. If that sort of detail is needed (which will only be to the extent, if any, that the relevant facts are challenged by the defendant), it should be set out in a witness statement. Witness statements are discussed at paragraph 8.6, and there are precedents at paragraph 6.7.5.
The requirements for the particulars of the claim are:
• it must be a concise statement of the facts on which the claimant relies (CPR 16.4(1)(a));
• it must include details of any interest claimed (CPR 16.4(1)(b) and
16.4(2));
• it must include details of any alleged misrepresentation
• it must set out any facts relating to mitigation
• it must specify any allegations of fraud or illegality – but see paragraph 4.6.3 (CPR PD 16, paragraph 8.2(1) and (2));
• if the claim is based on a written agreement, a copy must be attached (CPR PD 16, paragraph 7.3(1)); a copy of any relevant conditions of sale must be attached to the claim (CPR PD 16, paragraph 7.3(2));
• if the claim is based on an oral agreement, it must set out the words used and state by whom, when and where they were spoken (CPR PD 16, paragraph 7.4);
• it must be verified by a statement of truth (see paragraph 5.5).
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In addition, the claimant may use the claim to:
• refer to a point of law
• give the names of any witnesses (CPR PD 16, paragraph 13.3(2));
• attach any documents to support the claim (CPR PD 16, paragraph 13.3(3)).
If there is a claim for personal injuries which is not covered by the Road Traffic Accident Small Claims Protocol (see Chapter 13), refer to CPR PD 16, paragraph 4 for all that the particulars of claim must contain.
6.3.3 Detailing the defence
The defence must be more than a bare denial, or it is liable to be struck out (see paragraph 3.6.1). Every part of the claim must be dealt with (CPR PD 16, paragraph 10.2). Follow and respond to the paragraph numbers in the claim so that nothing is missed. Each defendant must file and serve a defence, but they can combine to serve a joint defence.
If an allegation is not dealt with in the defence it will generally be taken as proved (CPR 16.5(5)).
The defence must state precisely which allegations are:
• denied (CPR 16.5(1)(a));
• admitted (CPR 16.5(1)(c));
• not admitted or denied but the claimant is required to prove (CPR
16.5(1)(b)); this is permitted only where the defendant cannot admit or deny an allegation because they do not know whether or not it is true.
Also, the defence must:
• state reasons, if an allegation is denied (CPR 16.5(2)(a));
• set out the defendant’s own version of events if different from the claimant’s (CPR 16.5(2)(b));
• if the defendant alleges that the claim is made outside a limitation period,
give details (CPR PD 16, paragraph 13.1);
• be verified by a statement of truth (see paragraph 5.5).
In addition, the defendant may use the defence to:
• refer to a point of law (CPR PD 16, paragraph 13.3(1));
• give the names of any witnesses (CPR PD 16, paragraph 13.3(2));
• attach any documents to support the defence (CPR PD 16, paragraph 13.3(3)).
In relation to claims for personal injuries which are not covered by the Road Traffic Accident Small Claims Protocol (see Chapter 13), CPR PD 16, paragraph 12 sets out further requirements for the defence.
6.3.4 Reply to defence
A reply to defence is not usually needed, because a claimant who does not file a reply to a defence is not taken to admit the matters raised in the defence (CPR 16.7). But a reply is useful if the defence raises a relevant point about which the claimant has not set out their position in the particulars of claim.
6.3.5 Defence to counterclaim
Counterclaims fall into two categories, which need different treatment when preparing a defence.
First, there are counterclaims that simply shift the blame for the matter back onto the claimant. In this type of counterclaim there is one set of disputed facts, which relates to the claim and counterclaim. Typically, this is the type of counterclaim raised in a road traffic case. A simple response to counterclaim is needed, for example as shown at paragraph 6.7.4, Precedent R.
Second, there are counterclaims that raise a whole new set of facts and matters. An example would be where a plumber sues for unpaid charges and is met by a counterclaim alleging defective workmanship. These counterclaims need a full defence to counterclaim, which should be drafted by the claimant with all the care of a defence to a claim.
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6.3.6 Admission
The claim can be admitted in whole or in part. The benefit of a partial admission is that it narrows the amount in dispute and so reduces the amount of work needed to bring the case to a final conclusion. The terms of the admission should indicate the points that will be raised when the court decides the amount payable to the claimant. See also paragraph 3.3.
6.3.7 Amendments
Once a statement of case has been served on the other party, it can only be amended with their consent, or with the court’s permission (CPR 17.1). Failing consent, an application to court is needed (see paragraph 5.4). Unless the statement of case could not have been correctly worded in the first place, the applicant is unlikely to recover the court fee for the application from their opponent.
The judge will be reluctant to allow an amendment close to the hearing date, or which will otherwise put the other side at a disadvantage, particularly if this may force an adjournment. If that happens, the party making the amendment is likely to have to pay the costs of the adjournment.
If an amendment is permitted, the judge will normally order...
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