Drafting and Opinion Writing Flashcards

In a civil claim, what is the purpose of Particulars of Claim?

Answer: To set out the material facts on which the claimant relies to establish their cause of action

Particulars of Claim is a statement of case that sets out the material facts giving rise to the claimant's cause of action. It must contain a concise statement of the facts relied upon, the legal basis of the claim, and the remedy sought. It does not need to include evidence or legal argument.

What is the difference between a legal opinion and advice on evidence?

Answer: A legal opinion analyses the legal merits of a case, while advice on evidence focuses on the strength and admissibility of available evidence

A legal opinion (or advice on merits) analyses the legal issues, identifies the applicable law, and advises on the prospects of success. Advice on evidence, by contrast, focuses on whether the available evidence is sufficient to prove or disprove the relevant facts, its admissibility, and what further evidence may be needed.

When drafting a Defence under the CPR, what must the defendant do in relation to each allegation in the Particulars of Claim?

Answer: Admit, deny, or state they are unable to admit or deny each allegation, giving reasons

Under CPR Part 16.5, a Defence must deal with every allegation in the Particulars of Claim by admitting it, denying it (and stating the defendant's own version of events), or stating that the defendant is unable to admit or deny but requires the claimant to prove it. Failure to deal with an allegation results in it being deemed admitted.

What is the structure of a well-drafted counsel's opinion?

Answer: A structured document with heading, summary of instructions, issues, analysis of each issue, conclusion, and advice on next steps

A well-drafted counsel's opinion follows a clear structure: a heading identifying the matter, a summary of the instructions and key facts, identification of the issues, detailed analysis of each issue (applying law to facts), conclusions, and practical advice on the next steps. This structure ensures clarity and comprehensiveness.

In a negligence claim, which of the following must be pleaded in the Particulars of Claim?

Answer: The duty of care owed, the breach of that duty, the damage caused, and the causation linking breach to damage

To establish a negligence claim, the Particulars of Claim must plead all four elements: that the defendant owed the claimant a duty of care, that the defendant breached that duty, that the claimant suffered damage, and that the damage was caused by the breach. Omitting any element means the claim is deficient as a matter of law.

What is a Scott Schedule, and in what type of case is it commonly used?

Answer: A tabular format for presenting claims, listing each item of dispute with the claimant's case and defendant's response in parallel columns

A Scott Schedule is a tabular document commonly used in building disputes, dilapidations claims, and other cases involving multiple items of claim. It typically has columns for item number, description, claimant's case, amount claimed, defendant's response, and amount admitted. It allows the court to see each disputed item and both parties' positions side by side.