BPTC Drafting and Opinion Writing 2 — Questions and Answers
Question 1: When drafting a witness statement for use in civil proceedings, what must the statement contain?
- Only the witness's opinions about the case
- The witness's evidence in their own words, covering matters of fact within their personal knowledge, with a statement of truth (Correct answer)
- Legal arguments supporting the party's case
- A summary of all documents disclosed in the proceedings
Correct answer: The witness's evidence in their own words, covering matters of fact within their personal knowledge, with a statement of truth
Under CPR Practice Direction 32, a witness statement must be in the witness's own words, set out facts of which the witness has personal knowledge, be expressed in the first person, and contain a statement of truth. It should not contain legal argument, submissions, or comment on the evidence of other witnesses.
Question 2: What is the purpose of a counterclaim, and how is it drafted?
- It is a separate action filed in a different court
- It is a claim by the defendant against the claimant, set out in the same document as the Defence or in a separate document, and must satisfy the same pleading requirements as Particulars of Claim (Correct answer)
- It is a request for more time to file a Defence
- It is an application to strike out the claimant's case
Correct answer: It is a claim by the defendant against the claimant, set out in the same document as the Defence or in a separate document, and must satisfy the same pleading requirements as Particulars of Claim
A counterclaim is a claim made by the defendant against the claimant within the same proceedings. Under CPR Part 20, it is treated as a separate claim but is usually set out alongside the Defence. It must contain the same elements as Particulars of Claim — material facts, legal basis, and the remedy sought.
Question 3: In opinion writing, what does 'advising on quantum' mean?
- Advising on which court to issue proceedings in
- Advising on the amount of damages the client is likely to recover or be liable for (Correct answer)
- Advising on the number of witnesses to call
- Advising on the time limit for bringing a claim
Correct answer: Advising on the amount of damages the client is likely to recover or be liable for
Advising on quantum means advising on the likely amount of damages. This involves analysing the heads of damage (general and special damages), reviewing medical evidence and financial losses, considering relevant case law on comparable awards, and providing a realistic range of the likely award at trial.
Question 4: What is the 'statement of truth' that must be included on certain documents under the CPR?
- A declaration that the document was drafted by a qualified barrister
- A statement that the party believes the facts stated in the document are true, which carries sanctions for false statements (Correct answer)
- An oath sworn before a commissioner for oaths
- A certification by the court that the document has been filed correctly
Correct answer: A statement that the party believes the facts stated in the document are true, which carries sanctions for false statements
Under CPR Part 22, a statement of truth verifies that the party putting forward the document believes the facts stated to be true. It must be signed by the party or their legal representative. Making a false statement of truth without honest belief is contempt of court and can result in proceedings for contempt.
Question 5: When drafting an indictment for a criminal case, what must each count contain?
- A full summary of all the evidence in the case
- A statement of the offence (naming the offence and the statute) and particulars of the offence (describing the essential facts) (Correct answer)
- Only the name of the defendant and the plea
- A list of all witnesses to be called by the prosecution
Correct answer: A statement of the offence (naming the offence and the statute) and particulars of the offence (describing the essential facts)
Each count of an indictment must contain two parts: the statement of offence (identifying the offence by name and the statutory provision creating it) and the particulars of offence (setting out the essential factual allegations, including the defendant's identity, the date, and the nature of the criminal conduct). This ensures the defendant knows precisely what they face.
Question 6: What is the 'brief to counsel' and what does it typically contain?
- A one-page summary of the case for the media
- A bundle of documents sent by the instructing solicitor to the barrister, containing instructions, statements of case, witness statements, expert reports, and relevant correspondence (Correct answer)
- A short note from the judge setting out the issues in the case
- The barrister's own research notes on the case
Correct answer: A bundle of documents sent by the instructing solicitor to the barrister, containing instructions, statements of case, witness statements, expert reports, and relevant correspondence
The brief to counsel is the package of documents and instructions prepared by the instructing solicitor for the barrister. It typically contains a backsheet, the solicitor's instructions, statements of case, witness statements, expert reports, documentary evidence, relevant correspondence, and any previous counsel's opinions. It is the barrister's primary source of information about the case.
BPTC Drafting and Opinion Writing 2
When drafting a witness statement for use in civil proceedings, what must the statement contain?