#10082 - Drafting Notes - BPC Drafting

Drafting Notes

Evidence/Fact

• May wish to include names of witnesses. This is a tactical decision, do you want to let on you know these witnesses?

• If you don’t need to plead something to satisfy the cause of action/defence, it’s likely evidence

MOP-UP

• ‘The claimant is required to prove all of the allegations set out in the particulars of claim save those that have been expressly admitted above.’

Causation

The Claimants are required to prove that they have suffered the alleged or any loss and damage, and it is denied that any loss and damage suffered by the Claimants was caused by the matters complained of. If, which the Claimants are required to prove, XYZ, this is the result of the Claimant’s failure …

Mitigation

• Can’t just say they didn’t mitigate their loss, have to state what steps they should have taken but did not

Further or alternatively, if, which is denied, the Claimant(s) have suffered loss as a result of the matters complained of, they failed to take reasonable steps to mitigate such loss by:

1. XYA; and/or

2. ABC.

Prayer

AND the First Defendant counterclaims:

Ending

• Don’t actually sign your name

• A. COUNSEL

General

• DENY BREACH OF CONTRACT EXPRESSLY- not enough to just say ‘para x is denied’

• Term first, then breach. Each breach dealt with separately

• Can adopt defined terms from PoC (just make sure to use capitals, don’t need ‘x’ apostrophes though)

• Can’t allege two causes of action together, EXCEPTION: breach of contract and negligence

• D’s birthday

• If D is an individual, need d.o.b. and correct address

• Denial first and then all reasons in separate numbered sub-pars

• Page numbers!!

• Statement of truth needs words Defence and Counterclaim

• Don’t mention costs

• Don’t respond to:

1. claim for interest

2. statement of remedies sought

PHRASES

• Except that it is denied that …

• Further = this is consistent with previous line

• Alternatively = this is inconsistent with previous line

• Further or alternatively = this is consistent with previous line but you want it stand as a new defence if first line fails

• As alleged or at all = way to deny negligence

• ‘Alleged or any’ is the same

• Caused or contributed to = means you’re neither solely responsible or even partly responsible

• Save that/for …, it is denied [admitted] that …’ = part of para is accepted and part not

• Pay all or any part of …

• ‘In breach of contract …’ has to be included

• ‘To a specification set out in …’

• Among other things (ie. the Defendant is and was at all materials a company carrying on business as manufacturers, among other things …)

• ‘or any part of that sum or at all’

• If, which the claimant is required to prove…’

Interest

High Court s 35A Senior Courts Act 1981

County Court s 69 County Courts Act 1984

Where you’re going for interest for debt have to say in pleadings:

‘The Claimant and the First Defendant were each acting in the course of their respective businesses and it was an implied term of the contract, under section 1(1) of the Late Payment of Commercial Debts (Interest) Act 1998, that any qualifying debt created by the contract would carry statutory interest under the Act. The sum of ____ is a qualifying debt.’

The First Defendant further claims the sum of X by way of compensation under section 5A of the Late Payment of Commercial Debts (Interest) Act 1998

Statutory interest on the sum of ____ amounting to ______ to

Compensation of 100

The Defendant is unable to admit or deny but requires the claimant to prove …

• the defendant requires the claimant to prove …

• The Claimant is required to prove that …

• It is denied that the defendant is in breach of the alleged or any terms of the contract set out at paragraph x for the following reasons

ADMIT

• Except that it is admitted that:

a)

b)

and the Claimant is required to prove:

a)

b)

paragraph X is denied for the following reason:

a)

b)

Denial first then particulars or reasons for it listed in sub-paragraphs

‘In breach of the above implied terms …’

D denying breach of SGSA

• ‘It is denied that the Defendants are in breach of any implied term, or were negligent in carrying out the repairs and service, as alleged or at all.’

• G

• G

• G

PDPAC

In relation to paragraph X of the Particulars of Claim, it is agreed that the Defendant has complied with the requirements of the Practice Direction – Pre-Action Conduct, but the Claimant has not. State reasons why not …

Remoteness

Further or alternatively, the alleged …loss…, which the Claimant is required to prove, was not reasonably foreseeable and/or was not reasonably within the parties’ contemplation at the time of the agreement and is too remote for the Claimant to recover damages in respect of.

SET-OFF

Where D has received work and says it’s defective:

Need double set-off:

First one: Subject to the set-off and counterclaim set out below, the First Defendant admits the Claimant’s claim

OR

The Defendant refers to the set-off pleaded hereunder, by reason of which the Defendant denies that the sum of X, alternatively a part of that sum equal to the amount set...