DRAFTING – PARTICULARS OF CLAIM Claim against solicitor for negligence


DRAFTING

PARTICULARS OF CLAIM

Stage 1. The Parties and the facts which give rise to the duty:

A.Statement of Claim against solicitor for negligence in prosecuting action

1. The Defendant is and was at all material times a Solicitor carrying on practice at (address).

2. On 19 the Claimant was riding his bicycle along Street,when he collided with the open front off-side door of a motor-car driven by one X.Y.

3.The accident complained of was caused by the negligence of X.Y.

PARTICULARS OF NEGLIGENCE ON THE PART OF X.Y.

(Give Particulars)

4.By reason of the matters aforesaid the Claimant suffered pain, injury, loss and damage.

PARTICULARS OF INJURIES

Fracture of the skull(or as the case may be)

PARTICULARS OF SPECIAL DAMAGE

(Set them out)

B.Claim for damages for negligence against a solicitor in relation to a personal injury action

1.The Defendants are and were at all material times a firm of solicitors practising from(address). The Claimant is a model.

2.On or about (date) the Claimant suffered a broken arm, broken left, cheekbone, cuts to her face and extensive bruising when the car in which she was a passenger was involved in a collision with another vehicle driven by A. That accident was caused by the negligence of A. Particulars of that negligence and of the Claimant’s personal injuries and loss and damage are set out in the Claiamnt’s Claim Form and Particulars of Claim in action (claim number) a copy of which is annexed.

C.Claim for damages for negligence against a solicitor

1.The Defendants are and were at all material times a firm of solicitors practising from(address).

D. Particulars of Claim against solicitors where action struck out in county court

1.At all material times the Defendants were a firm of solicitors practising from (address).

2. On or about ….20…the Claimant tripped and fell whilst walking along the pavement in a northerly direction outside the public library situate in (address) at a point approximately 6 metres north of the main entrance of the library.

3.The Claimant’s injury was caused by the negligence and or breach of statutory duty of X. Y., who were at all material times the relevant Highway Authority, by themselves, their servants or agents.

PARTICULARS

(List particulars of negligence and breach of statutory duty)

4.As a result of the Claimant’s fall she suffered pain injury loss and damage.

PARTICULARS OF INJURY

a)      The Claimant was born on ….19…

b)      The Claimant suffered (Set out brief details of injury)

c)      Further particulars of the Claimant’s medical condition are contained in a report of (name) dated…..20…attached hereto.

PARTICULARS OF SPECIAL DAMAGE

A schedule of details of past and future expenses and losses is attached together with details of interest claimed.

E. Particulars of claim against solicitors for failing to issue proceedings in time

1 At all material times the Defendants were a firm of Solicitors practising from (address).

2.On or about …….20…the Claimant was injured during the course of his employment with X.Y. Ltd when his right hand became trapped in a lathe machine which he was required to operate.

3.The  said injury was caused by the negligence and /or breach of statutory duty of the said X.Y. Ltd.

PARTICULARS

(List particulars of negligence/breach of statutory duty which would have been available against employer)

F. Particulars of claim against solicitors and barrister for failing to issue proceedings in time.

1. At all material times the First Defendants were a firm of Solicitors practising from (address), and the Second Defendant was at all material times a barrister practising from chambers situated at (address).

2.On or about …..20…the Claimant was injured during the course of his employment with X.Y. Ltd when his right hand became trapped in a lathe machine which he was required to operate.

3.The said injury was caused by the negligence and/ or breach of statutory duty of the said X.Y.Ltd.

PARTICULARS

(List particulars of negligence/breach of statutory duty which would have been available against employer)

Stage 2. the accident or events or the cause of complaint:

A. Statement of Claim against solicitor for negligence in prosecuting action

5. On or about …19…the Claimant consulted the Defendant at his said office for professional advice about his rights of action against X.Y. and in reliance on the advice and professional skill and expertise of the Defendant, the Claimant retained and employed him as his Solicitor for reward and entrusted him with the task of commencing proceedings to recover against the said XY. in respect of his said negligence.

6. In the premises it was an implied term of the said contract that the Defendant would exercise skill, care and diligence in instituting and prosecuting the said proceedings.

B.Claim for damages for negligence against a solicitor in relation to a personal injury action

3.On or about (date) the Claimant consulted B, who was at the material time a solicitor employed by the Defendants, at their offices. B advised the Claimant that she had a reasonable chance of success in a claim against A for personal injury caused by A’s negligence and that she was likely to recover damages which would include her continuing loss of earnings as a model, as a result of the scarring to her face. Accordingly, the Claimant instructed B to act for her in connection with the said claim against A, which B, acting on behalf of the Defendants, agreed to do. The said retainer is evidenced by a letter dated (date) from the Defendants to the Claimant.

4. There were implied terms of the aforesaid retainer as follows:

a)      that the Defendants would carry out the Claimant’s instructions with reasonable diligence; and

b)      that the Defendants would exercise reasonable skill and care in the performance of their duties pursuant to the said retainer.

5.Further, or in the alternative, the Defendants owed the Claimant a duty of care in tort to the like effect.

6.On (date) B sent a letter of claim to A, pursuant to the pre-action protocols for personal injury claims. On (date) B telephoned the Claimant and informed her that he had been contacted by solicitors instructed on behalf of A and that he was chasing them for a substantive response to the letter of claim.

7.The Claimant heard nothing more from the Defendants until some 18 months later, on or about (date), when B telephoned the Claimant and advised her that proceedings needed to be commenced against A by no later than (date) and that a medical expert should be instructed to prepare a report and a barrister should be instructed to settle the Particulars of Claim. The Claimant agreed to this.

8.In fact, although B stated in the course of the said telephone advice that the latest date for commencing proceedings was (date) this was erroneous. Pursuant to s.11 of the Limitation Act 1980, the primary limitation period for the Claimant’s claim against A in fact expired on (date).

9.B did not instruct a medical expert until (date) and did not instruct a barrister to draft the Particulars of Claim until (date). Proceedings were not instituted by the Defendants until (date), after expiry of the primary limitation period, when the Claim Form in action (claim number) was issued and, together with the Particulars of Claim, served on A’s solicitors (‘the original action’).

10. By application notice dated (date) A applied to strike out the original action on the grounds that the same was statute barred. In an attempt to mitigate her losses, the Claimant instructed new solicitors and Counsel to resist that application. The Court refused to exercise its discretion under s.33 of the Limitation Act 1980 to disapply s. 11 and struck out the original action, awarding A his costs, to be subject to detailed assessment if not agreed.

C.Claim for damages for negligence against a solicitor

2. On or about (date) the Claimant agreed “subject to contract” to purchase a property known as (name) and situated at (address) (“the Property”). The Claimant retained the Defendants and the Defendants agreed to act for him in relation to his purchase of the Property. The said retainer is evidenced by a letter dated (date) from the Defendants to the Claimant.

3.There were implied terms of the aforesaid retainer that the Defendants would exercise the care and skill to be expected of reasonably competent conveyancing solicitors in performing their duties pursuant to the said retainer. Further or alternatively the Defendants owed the Claiamant a duty of care in tort to that effect.

4.The Property comprised a two-storey house, a garden and an outbuilding which was located to the West side of the Property. The position of the outbuilding relative to the Property, the neighbouring building and the ppublic highway is shown on the attached plan.

5.At the meeting at the Defendants’ offices on (date) in the course of which the Claimant first retained the Defendants, the Claimant commented to B, the partner who was handling the conveyance on his behalf, that he had for some time been looking for a house with a garage in the area in question, because he owned a classic car which he wished to store off the road, and that it was his intention to convert the outbuilding into a garage.

6.The Claimant’s purchase of the Property was completed on (date), the Defendants having purportedly investigated title and completed all necessary searches.

7.The boundary between the Property and the plot belonging to the owners of the neighbouring building is whown in red on the attached plan. The outbuilding is located on the border of the Property and the land between the outbuilding and the public highway in fact belonged to the owners of the neighbouring property. The vendors of the Property did not have any right of vehicular access across that land. The Claimant was unaware of this at the time of completion of the purchase of the Property.

Particulars of Claim against solicitors where action struck out in county court

5.On …..20.., the Claimant consulted one C.D. of the Defendants at their office at (address) and instructed him as agent for the Defendants to act for her in connection with her claim for personal injuries against X.Y. The said C.D. agreed to act for the Claimant on the Defendants’ behalf.

6.It was a term of the Defendants’ retainer by the Claimant that the Defendants would at all material times exercise reasonable skill care and diligence while acting as aforesaid.

7.Further and or in the alternative, at all material times the Defendants owed the Claimant a like duty in tort.

8.Pursuant to the terms of their retainer the Defenants commenced an action against the said X.Y. (the first action) by the issue of a claim form with Particulars of Claim attached in the …County Court, Claim number….dated….20…

9.Prior to the issue of the proceedings no notification of the claim had been sent to X.Y. further the Particulars of Claim failed to provide particulars of the circumstances of the accident in particular the precise location of the accident and failed to specify the breach of duty by X.Y.

10.Thereafter the Defendants failed to respond to a request for information made by the solicitors acting for X.Y and further failed to comply with an order made under Civil Procedure Rules 1998 Part 18Rule 1 (3)2 which provided for a response to be made to the request for information on or before …20…

11.On …20..the first action was struck out by District Judge …pursuant to Civil Procedure Rules 1998 Part 3 Rule 4. The Defendants failed to inform the Claimant of the said order until …20.. by which time 3 years had elapsed since the date of the accident and the claim was statute barred.

Particulars of claim against solicitors for failing to issue proceedings in time

4. On or about …20… the Claimant consulted C.D at (address) acting on behalf of the Defendants and instructed him to act on his behalf in connection with his claim for personal injury against X.Y. Ltd, which C.D agreed to do.

5.It was a term of the Defendants’ said retainer by the Claimant that the Defendants would at all material times exercise reasonable skill, care and diligence while acting as aforesaid. Further or alternatively the Defendants owed the Claimant a like duty of care in tort.

6.On the said date, the Claimant was advised by C.D. acting on behalf of the Defendants that proceedings should be commenced against X. Y. Ltd on the grounds of breach of statutory duty under the Workplace (Health, Safety and Welfare) Regulations 1992 and negligence but C.C. failed to institute the said proceedings until the same had become statute barred under the provisions of the Limitation Act 1980.

Particulars of claim against solicitors and barrister for failing to issue proceedings in time.

4.On or about ..20..the Claimant consulted C.D acting on behalf of the First Defendants and instructed him to act on his behalf in connection with his claim for personal injury against XY Ltd which C.D agreed to do.

5.It was a term of the First Defendants’ said retainer, or in the alternative, it was their duty, that the First Defendants would at all material times exercise reasonable skill, care and diligence while acting as aforesaid. further or alternatively the First Defendants owed the Claimnat a like duty of care in tort.

6. On the said date, the Claimant was advised by C.D. acting on behalf of the First Defendants that he proposed to instruct the Second Defendant to prepare an opinion on the merits of bringing an action abainst X.Y. Ltd on the grounds of breach of statutory duty under the Workplace (Health, Safety and Welfare) Regulations 1992 and negligence, and if favourable, to settle particulars of claim.

7.On or about ..20..the First Defendants instructed the Second Defendant to prepare an opinion on the merits of the claim against X.Y. Ltd, and if favourable, to settle particulars of claim.

8. In the premises the Second Defendant owed a duty of care to the Claimant to exercise reasonable skill, care and diligence in the preformance of his instructions.

9.The Second Defendant failed to prepare an opinion on the merits of bringing an action against X.Y.Ltd, or to settle particulars of claim before the expiry of the primary limitation period on….20…and the First Defendants failed to institute proceedings before the same had become statute barred under the provisions of the Limitation Act 1980.

Stage 3 the cause or cause of action:

A. Statement of Claim against solicitor for negligence in prosecuting action

7. Negligently, and in breach of the said term and of the duty of care owed to the Claimant, the Defendant failed to take action or any sufficient action until the Claimant’s rights lapsed by virtue of Section 11 of the Limitation Act 1980.

PARTICULARS OF NEGLIGENCE

(Either: (in the case of failure to institute claim)

Failing to issue a Writ of Summons against X.Y. within three years from the date when the Claimant’s cause of action against X.Y arose.

Or: (in the case of failure to prosecute claim)

Causing or permitting the Claimant’s claim against X.Y. to become statute-barred by reason of (failing to serve the Writ of Summons issued against XY. within (4 or, if leave was required to effect service out of the jurisdiction,) calendar months from the date of its issue and failing to make any or any proper application to extend the validity of the Writ or as the case may be) and conducting the said action in such a manner that on …19.. by order of Master …the said action was dismissed with costs for want of prosecution).

B.Claim for damages for negligence against a solicitor in relation to a personal injury action

11. In breach of the implied terms pleaded in paragraph 4 hereof and or negligently, the Defendants have failed to carry out the Claimant’s instructions with reasonable diligence or to exercise reasonable skill and care in the performance of their duties pursuant to the said retainer.

PARTICULARS OF NEGLIGENCE

a)failing to progress the claim with reasonable diligence, in particular, failing to progress it within a reasonable time after the date of the letter of claim;

b)failing to advise the Claimant at any time before (date) that steps should be taken to institute proceedings and/or that a medical expert and/or barrister should be instructed for that ppurpose and/or as to the risk that her claim might become time-barred;

c)erroneously advising the Claimant the she had until (date) to institute proceedings, when B ought to have appreciated that the limitation period under s.11 of the Limitation Act 1980 would in fact expire on (date) and ought to have advised the Claimant accordingly;

d)failing to instruct a medical expert at any time before (date);

e)failing to instruct a barrister to settle proceedings at any time before (date) and then doing so on the erroneous basis that the limitation period would expire on (date);

f)failing to issue proceedings against A within the primary limitation period;

g)thereby causing or permitting the Claimant’s claim against A to become time-barred.

C.Claim for damages for negligence against a solicitor

8. In breach of contract and/or negligently the Defendants failed to exercise the care and skill to be expected of reasonably competent conveyancing solicitors in performing their duties pursuant to the said retainer.

PARTICULARS OF NEGLIGENCE

a) failing to discover that the land between the outbuilding and the public highway did not form part of the Property;

b)failing to make any or any adequate inquiry as to whether any vehicular right of access existed over that land;

c)failing to advise the Claimant that the said land did not form part of the Property and/or that there were no such rights of access and/or that the outbuilding was in effect landlocked and therefore not suitable for the proposed use as a garage.

Particulars of Claim against solicitors where action struck out in county court

12.The matters aforesaid were caused by the Defendants’ negligence and or breach of the terms of their contract.

PARTICULARS

a)      failing to heed the terms of the pre-action protocol for personal injury claims;

b)      failing to notify X.Y of the Claimant’s fall and claim at any time prior to the issue of proceedings;

c)      failing to seek instructions from the Claimant in respect of the request for information;

d)      failing to respond in time or at all to the request for information;

e)      failing to comply with the order for a response to the request for further information in time or at all;

f)        failing to take any or any adequate steps to avoid the claim being struck out;

g)      failing to inform the Claimant as to the order made by the District Judge and warn her of the consequence of failing to reply to the request for information;

h)      failing to immediately advise the Claimant of the order striking out her claim.

Particulars of claim against solicitors for failing to issue proceedings in time

7. The failure to commence proceedings was caused by the negligence and /or breach of contract of the  Defendants, their servants or agents.

PARTICULARS OF NEGLIGENCE

a)Failing to issue proceedings against X.Y Ltd within the primary limitation period;

b) causing or permitting the said claim of the Claimant against X. Y Ltd to become satute-barred;

c)failing to take sufficient care in his conduct of the proposed proceedings;

d)failing to advise the Claimant of the risk that his claim might become statute-barred;

e)failing to pay any or any adequate regard to the appliction of the Limitation Act 1980 to the Claimant’s claim.

Particulars of claim against solicitors and barrister for failing to issue proceedings in time.

10. The failure to commence proceedings was caused by the negligence and/or breach of contract and /or breach of duty of the first Defendants, their servants or agents, and /or negligence and /or breach of duty on the part of the Second Defendant.

PARTCULARS OF NEGLIGENCE AND/OR BREACH OF THE FIRST DEFENDANT

a)Failing to issue proceedings against X.Y. Ltd within the primary limitation period;

b)causing or permitting the said claim of the Claimant against X. Y. Ltd to become statute-barred;

c)failing to take any or any sufficient steps to advise the Second Defendant of the impending expiry of the primary limitation period, and to take any steps to request that he prepare his opinion and/or settle particulars of claim before the expiry of the primary limitation period;

d)failing to advise the Claimant of the risk that his claim might become statute-barred;

e)failing to pay any or any adequate regard to the appliction of the Limitation Act 1980 to thes Claimant’s claim;

f)in the premises failing to take srfficient care in his conduct of the proposed proceedings.

PARTCULARS OF NEGLIGENCE AND/OR BREACH OF THE SECOND DEFENDANT

a)Failing to prepare an opinion on the merits of the action against X.Y. Ltd within a reasonable period, or in any event before the expiry of the primary limitation period;

b)failing to settle particulars of claim on behalf of the Claimant against X.Y.Ltd within a reasonable period, or in any event before the expiry of the primary limitation period;

c)failing to heed or abserve that the primary limitation period for bringing the action against X.Y. Ltd expired on….20..;

d)failing to advise the First Defendants to issue proceedings on behalf of the Claimant against XY Ltd before the expiry of the primary limitation period;

e)causing or permitting the said claim of the Claimant against X. Y. Ltd to become statute-barred;

f)in the premises failing to take sufficient care in his conduct of the proposed proceedings.

Stage 4: causation, loss and damage (particulars), injury and special damage:

A. Statement of Claim against solicitor for negligence in prosecuting action

8. Because of the said matters the Claimant lost all prospect of recovering damages from X.Y. in respect of the collision mentioned in paragraph 2 hereof and has thereby suffered loss and damage.

PARTICULARS OF SPECIAL DAMAGE

Amount paid to the Defendants on account of costs $…..

(Amount paid to X.Y. on account of costs in the said action$….)

B.Claim for damages for negligence against a solicitor in relation to a personal injury action

12. By reason of the matters aforesaid the Claimant has suffered loss and damage for which the Dafendants are liable.

PARTICULARS OF LOSS AND DAMAGE

a)The Claimant has lost the opportunity of recovering damages from A, which she had a reasonable prospect of recovering. The said damages, full particulars of which appear from the Particulars of Claim in the original action, attached hereto, would in summary have comprised:

i)damages for pain suffering and loss of amenity;

ii)items of special damage including past and future loss of earnings, as set out in schedule A to the said Particulars of Claim. and/or

b)The sum which the Claimant has paid the Defendants on account of their costs, namely $(    ), which was wholly wasted as a result of the Defendants’ negligence and/or for which the consideration has wholly failed.

c)The costs which the Claimant was ordered to pay A, which were agreed between A’s solicitors and the Claimant’s new solicitors, Messrs X, in the sum of $(…).

d) The costs which the Claimant incurred in mitigating her damage, namely the costs of $(…), including Counsel’s fees, incurred in seeking advice from new lolicitors and Counsel in relation to the strike out application and in resisting that application.

C.Claim for damages for negligence against a solicitor

9.By reason of the matters aforesaid, the Claimant has suffered loss and damage.

PARTICULARS OF LOSS AND DAMAGE

a)      the difference between the contract price of $(….), which the Claimant had offered to and did pay in the belief that the outbuilding could be converted to a garage, and the market value of the Property without vehicular access to the outbuilding; and

b)      the Claimant’s costs of obtaining legal advice from another firm of solicitors as to ownership of the land in question, in the sum of $( ).

Particulars of Claim against solicitors where action struck out in county court

13.By reason of the matters aforesaid, the Claimant has suffered loss and damage.

PARTICULARS OF LOSS

a)      Costs of the first action including X.Y.’s assessed costs and the Claimnat’s own costs and expenses.

b)      the loss of opportunity to sue X.Y.

Particulars of claim against solicitors for failing to issue proceedings in time

8. By reason of the matters aforesaid, the Claimant has suffered loss and damage.

PARTICULARS

1)The Claimant has lost the opportunity of recovering damages from X.Y. Ltd. The said damages would have comprised the following:

a)damages for pain, suffering and loss of amenity. As a result of the accident the Claimant suffered (give brief particulars of injury); full particulars of the injury suffered by the Claimant are as set out in the medical report prepared by E.F served herewith;

b)damages in respect of the Claimant’s handicap on the labour market;

c)items of special damage, including loss of earnings, as set out in the Schedule of past and future losses and expenses served herewith.

2) amount paid to Defendants on account of costs $…..

Particulars of claim against solicitors and barrister for failing to issue proceedings in time.

11. By reason of the matters aforesaid, the Claimant has suffered loss and damage.

PARTICULARS

1)The Claimant has lost the opportunity of recovering damages from X.Y. Ltd. The said damages would have comprised the following:

a)damages for pain, suffering and loss of amenity. As a result of the accident the Claimant suffered (give brief particulars of injury); full particulars of the injury suffered by the Claimant are as set out in the medical report prepared by E.F served herewith;

b)damages in respect of the Claimant’s handicap on the labour market;

c)items of special damage, including loss of earnings, as set out in the Schedule of past and future losses and expenses served herewith.

2) amount paid to Defendants on account of costs $…..

Stage 5: the claim for interest and Stage 6: the remedies sought

Particulars of Claim against solicitors where action struck out in county court

14. Further the Claimant claims  and is entitled to recover interest persuant to section 35A of the Supreme Court Act 1981 on the damages found due at such rate and for such period as the Court thinks fit.

AND the Claimant claims:

(1)   Damages.

(2)   Interest pursuant to section 35A of the Supreme Court Act 1981 to be assessed.

XXXX

STATEMENT OF TRUTH

Dated etc.

No change