A Defence to claim against solicitor for negligence in prosecuting action
1. The Defendant admits that he is a Solicitor of the Supreme Court and that the Claimant consulted him for professional advice about his rights of action against one S.Y. in respect of the alleged collision referred to in paragraph 2 of the Statement of Claim.
2. The Defendant denies that he agreed to commence proceedings to recover against the said X.Y in respect of his alleged negligence. The Defendant advised the Claimant that his claim had little or no chance of success because the Claimant had been riding his bicycle without a lamp along an unlit street on a dark night while intoxicated.
3. The Defendant agreed to write to X.Y’s Solicitors suggesting a settlement, but explained to the Defendant that if their reply was negative he would not be prepared to take the matter further.
4.The Defendant did write to X. Y’s Solicitors who replied that their client was not prepared to settle and that he would defend any claim brought against him. The Defendant informed the Claimant of this by letter dated….19…in which he stated he would not be taking the matter further and enclosed his bill of costs. The Defedant advised the Claimant that if he wished to commence proceedings he would have to do so on or before the ….day of …19.. to avoid the said proceedings becoming statute barred.
5. On 19 the Claimant informed the Defendant at his office that he was dispensing with the Defendant’s services as his Solicitor and would be seeking legal advice elsewhere.
6.Save as is expressly admitted herein the Defendant denies each and every allegation contained in the Statement of Claim as if the same were set out herein and specifically traversed.
B. Defence alleging claim struck out by reason of Claimant’s failure to provide adequate instructions
1. Paragraph 1 of the Particulars of Claim is admitted.
2. The Defendants are unable to admit or deny the circumstnaces of the Claimnt’s injury, the allegations made agaisnt S.Y. and her loss and damage, in the premises the Claimnt is put to strict proof of the matters contained in paragraphs 2,3 and 4 of the Particulars of Claim.
3.paragraphs 5, 6,7,8,9,10 and 11 of the Particulars of Claim are admitted.
4.The Defendants deny that they were negligent as alleged in paragraph 12 of the Particulars of Claim. In respect of the particulars of negligence the Defendants plead as follows:
(a) Sub paragraphs (a) and (b) of the particulars
The Defendants admit that noticfication of the claim was not sent to X.Y prior to the issue of the proceedings, the Claimant consulted the Defendants on …20.., the limitation period in respect of her claim expired on ….20…In the circumstances there was insufficient time to communicat4 with X. Y. and or observ the protocol prior to the issue of proceedings.
(b) Sub paragraph (c) of the particulars
The Defendants took all reasonable steps to obtain instructions from the Claimant, namely:
By letters dated ….20… and ….20.., and
By messages left on the Claimant’s answering machine on …20..and on ….20.. asking the Claimant to contact the Claiant namely on …20…,…20…and …20 ..20…no response was received from the Claimant . In the circumstanscs the Defendants did all that could be expected of a competent solicitor acting with reasonable skill and care.
5. The Defendants are unable to admit or deny whetehr or not the Claimnt has suffered any losses or the amount of those losses but requires the Claimant to prove the same.
6.Further or alternatively if the Claimant has suffered loss or damage the same was caused or contributed to by her own negligence.
(a) Failing to give the Defendants any or any adequate instructions;
(b) failing to respond to the Defendants’ requests for instructions as particualarised in paragraph 4 herein;
(c) failing to pay any or any adequate heed to the advice of the Defendant that her claim was at risk of being struck out;
(d) failing to take any or any sufficient interest in the prosecution of her claim.
C. Defence admitting negligence where claimant claims loss of opportunity to bring proceedings
1. Paragraph 1 of the Particulars of Claim is admitted.
2. The Defendants are unable to admit or deny:
(a) whether or not the Claimant sustained an injury during the course of his employment as alleged in paragraph 2 of the Particulars of Claim;
(b) whether or not the Claimnat’s employers X.Y. Ltd were negligent and/or in breach of statutory duty as alleged in paragraph 3 of the Particulars of Claim.
The Claimant is required to prove the allegations he makes in those paragraphs.
3.Paragraphs 4 and 5 of the Particulars of Claim are admitted.
4.It is admitted that the Defendants advised the Claimant on the basis of his instructions that he potentially had a cliam against X.Y. Ltd for negligence and /or breach of statutory duty but that no proceedings were issued against X.Y Ltd until the same had become statute-barred by the provisions of the Limitation Act 1980.
5.For the purposes of these proceedings only it is admitted that the Defendants were in breach of contract and negligent as alleged in paragraph 7 of the Particulars of Claim.
6.The Defendants admit the Claimant has lost the opportunity of recovering damages from XY Ltd. The Defendants are unable to admit or deny the nature or amount of the damages which would have been recovered in a successful action against X.Y. Limited and require the Claimnt to prove the same.
7. Further or alternatively in assessing the size of the lost opportunity the Defendants aver that regard must be had to:
(a) the fact that X.Y Ltd denied liability on the grounds that (give particulars of the denial);
(b) the fact that X.Y Ltd alleged contributory negligence against the Claimant (give particulars of document in which the allegation was made and of the contributory negligence alleged);
(c) the risks inherent in any litigation.
D Claim against solicitor for permitting claim to be struck out for want of prosecution
1. The Defendants admit paragraphs 1 and 2 of the Particulars of Claim.
2. It is denied that the Claimant’s accident was caused or contributed to by the negligence of XY; on the contrary it was caused by the Claimant’s own negligence.
(Here set out the case put against the Claimant by XY).
3. It is admitted and averred that the Defenants were retained by the Claimant as alleged in paragraph 4 of the Particulars of Claim, and that they therefore owed to the Claimant a duty or were subject to an implied term, to use all reasonable care, skill, competence and diligence in the conduct of his claim against XY, but save as aforesaid paragraphs 4 and 5 of the Particulars of Claim are denied.
4.The steps particularised as having been taken by the Defendants in performance of the aforesaid implied term or duty aas alleged in paragraph 6 of the Particulars of Claim are admitted, and further:
(a) the Claimant failed to attend Dr Z until (insert date) and refused to be examined by Dr Z on behalf of the Defendant in those proceedings;
(b) despite repeated requests by letters dated (insert) the Claimant failed to supply the Defendants with information necessary to formulate the Schedule of financial Loss or the documentation to support it;
(c) the Claimant and his wife, his principal witness, failed , despite repeated requests by letters dated (insert) to return duly signed witness statements to enable exchange in compliance with the automatic directions.
5.It is admitted that the Claimant’s cliam was struck out on (insert date), but it is denied that this was due to, nor was there the alleged or any negligence or breach of duty or breach of implied term on the part of the Defendants their servants or agents. The Claimant’s inability to proceed with his claim was caused, or contributed to , by his own negligent conduct as particularised in paragraph 4.
6. The Defendants are not in a position to agree or dispute the contents of the medical report disclosed by the Claimant, or the allegations of loss, damage, distress and inconvenience. The Defendants will aver that any loss, damage, distress or inconvenience which the claimant may establish, was the direct consequence of his own negligent conduct as set out in paragraph 4 and was not caused by any negligence or breach of duty on the part of the Defendants.
E . EXERCISE 8A – SUGGESTED ANSWER
1. Paragraph 1 of the Particulars of Claim is admitted.
2. Except that it is denied that the letter of 28th March 2003 set out the agreement in its entirety, paragraph 2 of the Particulars of Claim is admitted.
3. It was an express term of the agreement, agreed orally between Eleanor Moore and Peter Williams on 27th March 2003, that upon the expiry of a 12 week period from the commencement of the agreement it should be terminable by either party upon giving reasonable notice to the other party.
4. Paragraph 3 of the Particulars of Claim is admitted.
5. It is denied that the Defendants are in breach of or repudiated the agreement. On 29th June 2003 the Defendants through Peter Williams informed the Claimants that they were terminating the agreement in accordance with the above express term and paid the Claimants £1,400 in lieu of reasonable notice. Otherwise paragraph 4 of the Particulars of Claim is denied.
6. The Claimants are required to prove the alleged loss and damage and to prove the amount and the causation of that loss and damage.
F. EXERCISE 8B – SUGGESTED ANSWER
1. Paragraphs 1 and 2 of the Particulars of Claim are admitted.
2. It is denied that the lorry rolled down the access road of its own accord. This would have been impossible, because the access road is not straight. If, which the Claimant is required to prove, a brick from the wall was at any time propelled through a window of the house, it is denied (for the reasons set out in paragraph 5 below) that any brick was so propelled as a result of the collision of the lorry with the wall. Otherwise, paragraph 3 of the Particulars of Claim is admitted.
3. It is denied that the Defendants their employees or agents were negligent as alleged in paragraph 4 of the Particulars of Claim or at all, or that the events complained of by the Claimant were caused by any negligence on the part of the Defendants their employees or agents. The slope on which the lorry was parked was not steep, and there was therefore no reason to take any additional precautions to prevent it running down the hill. The parking brake was fully engaged and in proper working order.
4.The collision of the lorry with the wall was caused by a person or persons unknown to the Defendants, who broke into the lorry, released the parking brake, drove or steered the lorry down the access road, and caused it to collide with the Claimant’s wall and car. This person or persons were unconnected with and outside the control of the Defendants and their actions could not reasonably have been foreseen or prevented by the Defendants.
5. The loss and damage alleged in paragraph 5 of the Particulars of Claim is admitted. It is however denied that any damage to the window was caused by the collision of the lorry with the wall. This is impossible in view of the speed with which the lorry hit the wall and the distance and angle between the wall and the window. The Defendants will rely on the evidence of Roland Andrews, a copy of whose witness statement is attached.
G. Example defence:Tort 8.5
1. Except that it is denied that the pedestrian aspect of the automatic traffic signals was showing in the Claimant’s favour when she was walking on the crossing , paragraph 1 of the Particulars of Claim is admitted.
2. It is denied that the Defendant was negligent as alleged in paragraph 2 of the particulars of Claim or at all. It is further denied that the accident was caused by any negligence on the part of the Defendant. The Defendant was driving at a safe speed and keeping a proper lookout. Since the traffic lights were in her favour, she had no obligation to give precedence to the Claimant or waarn her of her approach.
3. The accident was caused or contributed to by the failure of the brakes on the Defendant’s car. The brakes did not respond properly or at all when the Defendant applied them and she was unable to stop her car and avoid striking the Claimant.
4.The failure of the brakes, and accordingly the accident, were caused by the negligence of the Part 20 Defendant, which operates a garage where the Defendant’s car was serviced on 3rd May 2002.
PARTICULARS OF NEGLIGENCE
(a) Failing properly to tighten a joint in the brake hydraulic system which they fitted the Defendant’s car, so allowing brake fluid to leak from the system.
(b) Failing to carry out repairs and service to the Defendant’s car in a safe and workman like manner.
(c) Allowing the Defendant to drive her car away when it was not safe or roadworthy.
(d) Failing to warn the Defendant that the brakes on her car were or might be or might become defective.
5.Further or alternatively the accident was caused or contributed to by the negligence of the Claimant.
PARTICULARS OF NEGLIGENCE
(a) Crossing the road when the pedestrian aspect of the traffic signal showed red.
(b) Failing to look to see if it was safe to step on to the crossing before doing so.
(c) Failing to observe or heed the Defendant’s car.
(d) Failing to stop, step aside or take any other action to avoid being struck by the Defendant’s car.
6. Except as set out in paragraph 7 below, and in the counter-schedule of loss and expense served with this defence, the Claimant is required to prove the extent of her injuries and of any loss and damage claimed.
7.(Deal with matters set out in Claimant’s medical report, stating which are agreed, which are disputed, and which are matters the ‘Defendant has no knowledge of )
STATEMENT OF TRUTH
H. Example: Exclusion clause : remoteness (10.3)
1. Paragraphs 1 and 2 of the Particulars of Claim are admitted.
2.It was an express term of the agreement, set out in writing on the sevice invoice referred to, that the Defendants should not be liable for any loss arising out of the repairs and service to the mower except insofar as such loss consisted of and arose from damage to the mower caused by faulty and negligent execution of the repairs and service.
3.Paragraph 3 of the Particulars of Claim is admitted.
4. The Defendants are unable to admit or deny the matters set out in Paragraph 4 of the Particulars of Claim and the Claimant is required to prove them.
5.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. If, which the Claimant is required to prove, the throttle return spring was not properly attached to the frame of the motor mower, it was either in that condition when the mower was brought to the “Defendants for service and repair, or it came about after the mower was returned to the Claimant. The repairs and service did not involve any adjustment to or interference with the throttle return spring.
6.The Defendants admit the cost of repairs to the greenhouse and the value of the plants damaged, but require the Claimant to prove the alleged loss of prixe money and the causation of all loss and damage claimed.
7.Further or alternatively the alleged loss of opportunity to win prize money at The Midland Garden show, 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 it.
8.Further or alternatively the Defendants rely on the express term referred to in paragraph 2 above.
I. Avant-Garde School of Music Limited (AGSM)
1.Paragraph 1 of the Lparticulars of Claim is admitted.
2.Paragraph 2 of the Particulars of Claim is admitted except that by the agreement made on or about 5th May 2003 (‘the agreement’):
(a) It is denied that the Defendant agreed to pay the Claimant $2,400, or any sum, as alleged in Paragraph 2(2) of the Particulars of Claim. By the agreement, the Defendant agreed to pay $120 to each student in the orchestra upon completion of their agreed performances as evidenced in the Defendant’s letter to the Claimant dated 9th May 2003, and the Claimant’s letter to the Defendant dated 15th May 2003.
(b) It is further denied that the Claimant could use the Defendant’s theatre free of charge on 19th and 20th July 2003. By the agreement, the Defendant agreed the Claimant could use its theatre free of charge on a date to be arranged after 13th july 2003. On or about 15th May 2003 it was agreed that the Claimant could use the theatre free or charge on 19th and 20th July 2003.
3. It was an express, alternatively an implied, term of the agreement, evidenced by the letters, that all the students in the orchestra would:
(a) attend every regearsal at which their attendance was required; and
(b) stay for the full duration of every such rehearsal.
4. It was further an implied term of the agreement that the erchestra should be capable of playing the music for the production to a competent standard, whether by sight-reading or after thorough practice, both individually and collectively.
5.By the letter from th eDefendat to the Claimant dated 7th June 2003 the Defendant duly notified the Claimant of the dates and times of rehearsals for which the orchestra was required, namely:
Monday 23rd June 2003 7.30p.m
6.The Claimant has acted in breach of the express and /or implied terms set out in paragraphs 3 and 4 above.
(a)Many or all of the students in the orchestra did not attend all of the required regearsals, but sent along substitutes instead. In particular substitutes attended the rehearsals on 15th June 2003, 28th June 2003 and 5th July 2003;
(c) Only 7 students attended the rehearsal on 28th June 2003, which made it impossible for the work scheduled for that rehearsal to be done;
(d) On 3rd and 4th July 2003 several students left the rehearsal before it was finished;
(e) As a result of the above matters and/or because of the students’ failure to practise thoroughly and/or in any event, the orchestra was not capable at any of the rehearsals of playing the music for the production to a competent standard, whether individually or collectively.
7. Except that it is admitted that the Claimant provided an orchestra for the rehearsal on 23rd June 2003, and as set out above, paragraph 3 of the Particulars of Claim is denied. The Claimant failed to provide an orchestra which attended rehearsals in accordance with the agreement for the reasons set out in Paragraph 6 above.
8.It is admitted that on 6th July 2003 Sophie Engel told the orchestra that its services were no longer required and instructed it to depart, otherwise Paragraph 4 of the particulars of Claim is denied. In particular, it is denied that the Defendant repudiated the agreement by so doing or at all. As a result of the above breaches by the Claimant , and/or the conduct of the orchestra which indicated that the Claimant was unwilling or unable to perform its obligations under the agreement properly or at all, the Defendant was entitled to and did treat itself as discharged from its further obligations under the agreement.
9.Except that it is denied that the Defendant was in breach of the agreement or repudiated it for the reasons stated in Paragraphs 6, 7 and 8 above, Paragraphs 5 and 6 of the Particulars of Claim are admitted.
10.The Claimant is required to lprove that it has suffered the loss and damage alleged in paragraph 7 of the Particulars of Claim or any loss and damage.
11. Further, it is denied that any loss or damage which the Claimant may establish was caused by any breach or repudiation of the agreement by the Defendant for the reasons pleaded in this Defence. Further, such loss and damage, to the extent that it may be proved, was caused by the fault of the Claimant and/or by its failure to take reasonable steps to mitigate, in that:
(a) the Claimant made payments to the orchestra which it was not obliged to make; and /or
(b) the Claimant declined a written offer made by the Defendant in its letter dated 14th July 2003, to allow it to use the Defendant’s theatre on 19th and 20th July 2003 at a cost of $250.
J. Arnold Brain
1. Except that the Claimant is required to prove that he is the owner of 16 Evelyn Road, Paragraph 1 of the Particulars of Claim is admitted.
2. It is admitted that in May 2002 there was a shed in the garden of No.16, and that the Claimatn was conducting an experiment in the shed using apparatus and a lighted paraffin burner, otherwise the Claimant is required to prove the matters alleged in Paragraph 2 of the Particulars of Claim.
3.As to Paragraph 3 of the Particulars of Claim:
(a) It is admitted that on 7th May 2002 the Claimant showed the Defendants’ Director Jack Sweet the apparatus and a lighted paraffin burner in the shed;
(b) It is further admitted that the Claimant told Jack Sweet that he was conducting experiments in the shed using the apparatus and paraffin burner.
(c) It is denied that the Claimant told Jack Sweet about any of the other matters alleged in Paragraph 2 of the Particulars of Claim. It is specifically denied that the Claimant told Jack Sweet that he was a biochemist, or that the apparatus was of necessity delicately poised and liable to be unbalanced by excessive vibration. The Claimant expressed concern that scaffolding poles leaning against the fence that divides No 14 and 16 might strike his shed if they were knocked.
4.(1) It is admitted that:
(a) the Defendants used a pneumatic drill in the garden of No. 14 on 20th May 2002;
(b) the Claimant’s wife asked them to stop doing so on account of the noise from the drill;
(c) the Defendants thereafter continued to use the drill; and
(d) the Claimant’s shed caught fire sometime that afternoon.
(2)The Claimant is required to prove that the apparatus and/or paraffin burner became unbalanced and collapsed;
(3)Otherwise all other matters alleged in Paragraph 4 of the particulars of Claim are denied. In particular, it is denied that the Claimant’s wife gave any warning about vibration, and/or that there was any causal connection between the use of the drill and the fire. The Defendants used the drill to break up a concrete slab in the garden of No 14 which did not touch the Claimant ‘s shed, fence or garden. Further the concrete slab was laid on top of clay soil which wholly or substantially absorbed any vibrations before they reached the Claimant’s shed.
5. It is denied that the Defendants, their employees or agents were negligent as alleged in paragraph 5 of the Particulars of Claim or at all, or that the fire was caused by the alleged or any negligence on the part of the Defendants. There was no foreseeable damage that might be done to the Claimant’s property by the use of the drill. Consequently there was no obligation on the part of the Defendants to refrain from using it, or to take precautions to prevent vibrations reaching the Claimant’s shed, or to give or heed any warning.
6. Paragraph 6 of the Particulars of Claim is denied for the reasons set out in Paragraph 5 above. Further the Defendants used the drill for no more than about 1 hour and its use was reasonable in the circumstances.
7. Further or alternatively, if (which is denied) the Defendants were negligent and/or committed a nuisance as alleged or at all, and if (which is further denied) the fire was a consequence of any such negligence or nuisance, this consequence was not reasonably foreseeable.
8. Further or alternatively, the fire was caused by one or both of the Claimant’s children who entered the shed, and/or disturbed, dislodged or knocked over the apparatus and /or paraffin burner, and /or performed some other act which brought about the fire.
9. Further or alternatively, the fire was caused or contributed to by the Claimant’s own negligence.
PARTICULARS OF NEGLIGENCE
The Claimant was negligent in that he:
(a) Set up the burner and apparatus in such a way that they were liable to fall or be knocked over.
(b) Left a lighted paraffin burner unattended on the corner of an unstable table, and/or in a position where it was not safe and secure.
(c) Failed to keep the door of the shed locked, or to take any or sufficient precautions to prevent his children, or other unauthorised persons, from entering the shed.
(d) Failed to take any or any effective means to prevent his children form playing near the shed, and/or from coming into contact with the shed.
(e) Failed to take any other proper or adequate precautions to prevent the risk of fire in the shed.
10.As to Paragraph 7 of the Particulars of Claim:
(a) It is admitted that the fire caused damage to the Claimant’s shed and its contents.
(b) The Claimant is required to prove that his experiment was ruined and that he suffered distress and anxiety and the loss and damage alleged in paragraph 7 of the Particulars of Claim.
(c) The fire, and such distress, anxiety and loss and damage as the Claimant may prove (if any) was not caused by the alleged or any negligence or nuisance on the part of the Defendants its employees or agents for the reasons stated above.
K. EXERCISE 11B – SUGGESTED ANSWER
IN THE BRIGHTON COUNTY COURT Claim No BN3/16380
EDWARD GRANBY Claimant
LEISURE BREAKS LIMITED Defendants/Part 20 Claimants
CUMBRIAN HOTELS LIMITED Part 20 Defendants
1. Except that the Claimant is required to prove that he relied on or was induced by the Defendants’ representations, paragraphs 1, 2 and 3 of the Particulars of Claim are admitted.
2. Paragraph 4 of the Particulars of Claim is denied. The representations formed no part of the contract.
3. Paragraph 5 of the Particulars of Claim is admitted.
4. Except that
(i) it is admitted that the Hotel is 2 miles from the Lake; and
(ii) the Claimant is required to prove the matters alleged in paragraph 6(b) and 6(c) of the Particulars of Claim;
paragraph 6 of the Particulars of Claim is denied for the reason given in paragraph 2 above.
5. The Defendants at all material times believed on reasonable grounds that the representations made by them in their brochure were true.
(1) The Defendants relied on representations made to them by the Part 20 Defendants (the owners of the Hotel) in a letter dated 20th September 2002, in which the Part 20 Defendants stated that
(a) the Hotel was on the shores of the Lake; and
(b) visitors to the Hotel could fish in the Lake.
(2) In reliance on these representations it was reasonable for the Defendants to believe and represent that holidays at the Hotel were suitable for fishermen.
6. The Claimant is required to prove that he and/or his friends have suffered disappointment and distress, and that he has lost the value of the Holiday or suffered loss and damage as alleged in paragraph 7 of the Particulars of Claim or at all.