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Thread: Drafting particulars of Claim...Advice required

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    Default Drafting particulars of Claim...Advice required

    I'm a litigant in person intending to file a claim against a Landlord for harassment. Can any of the members please point me in the right direction for some good examples of 'Particulars of Claim'. I have previously been threatened with 'strike out' in another case because my Particulars of Claim were not up to scratch. I'm now very weary of how I write the Particulars of Claim. I'd appreciate your help. Thank you.

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    Default Re: Drafting particulars of Claim...Advice required

    A Guide to Preparing Documents for Court




    There is a standard format for documents for court both in terms of their formatting and their contents. The format of court documents has been discussed in the thread on making a court bundle http://www.legalbeagles.info/forums/...ad.php?t=30204 and is the subject of a Practice Direction (PD) of the Civil Procedure Rules (CPR) [link]. To summarise: ALWAYS double space; ALWAYS number the pages; also number each paragraph; use Times New Roman font in 12pitch; allow generous margins (the PD specs for these are actually larger than the default settings of Microsoft Word, but Word default settings are not usually complained about). Make sure for any document you have a copy for the court, a copy for the other side, and a copy to keep for your own use.


    In terms of the content, there is a formula for this which should be followed. If you studied any science subjects at school, it is similar to having 'method, results and conclusions' sections when you write up a science experiment. There is an EXCEEDINGLY helpful book available from Amazon (and elsewhere) http://www.amazon.co.uk/Pleadings-Wi...4709688&sr=8-1
    which explains exactly how to do this. I was able to borrow this book (free of charge) from my local public library – it is worth checking if yours stocks it.


    I will start with Particulars of Claim (POC) as if you are bringing a case, this is its kernel. The POC should summarise your claim succinctly so that anyone reading it quickly knows what's going on. You should not include evidence (this belongs in witness statements from yourself or other relevant witnesses), or detailed discussion of caselaw or legislation (this belongs in a Skeleton Argument, a separate document which I will come to a little later.)




    Your POC should follow the format:

    • This is who we are
      Explain who each party is in the dispute. If the Defendant is a bank, credit card provider or insurer, explain this, and state that you held an account/a credit card / a policy with it, giving if possible the reference number of this/these and the approximate dates you held these, eg “The Defendant is and was at all material times a high street retail bank. The Claimant held a current account number XXXXXXXX and a credit card number YYYYYYY with the Defendant from on or around September 20NN.”
    • This is what happened
      If your claim is for breach of contract, explain when and how the contract was made. If there is a written agreement you are relying on, attach a copy of this. Explain any terms of the contract which are important in your claim. These may be explicit terms, which should be referred to and quoted; implied terms which is where legislation or codes of practice are implied into a contract – this means the contract is presumed to include them even if there is no specific reference to this.
      If your claim is for breach of statutory duty (breaking the provisions of a specific piece of legislation eg the Unfair Contract Terms Act 1977), explain that this legislation is involved and why. State that you rely on the provisions of this legislation. This is especially important if you are relying on the Misrepresentation Act 1967
    • This is what the problem is
      Explain succinctly what has gone wrong and list the breach(es) of contract and/or statutory duty.
    • Explain how this has affected you
      eg you have lost money by paying unfair charges. Make sure you link the Defendant's wrongdoing to your loss/hardship etc. A useful phrase may be 'By way of the Defendant's breach of contract and/or breach of statutory duty and/or negligence, the Claimant has suffered Loss and Damage'. You should then list 'Particulars of Loss and Damage' as a separate sub-heading or in a separate attached schedule eg listing the unfair charges you are claiming back.' If you are relying on any expert reports eg medical reports, actuarial reports on pensions losses, stating that 'The Claimant relies on the expert report of Mr [Name, qualifications, profession] of [date].'




      • And this is what I /we want done about it
        Explain what you want done to put it right and then list the remedies you are seeking again in a list beginning 'AND THE CLAIMANT CLAIMS.....'.
        If you want compensation the word 'damages' is used.
        If you want something done by the other side and are seeking a court order to make them eg comply with a data protection act request, state that this is a remedy you are seeking and if at all possible supply a draft court order on a separate sheet.
        Remember to ask for 'Interest on any sums found to be owed to the Claimant' if money is owed to you; and to ask for 'Costs' (unless your case is one the Small Claims Track). It is usual that costs is the last item, and interest is the penultimate item.

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    Default Re: Drafting particulars of Claim...Advice required

    Harassment by Creditors
    Are creditors or DCAs making your life a misery ? Constant phone calls, calls early and late, unannounced visits, contacting employers, neighbours or family ?
    This is the experience of many members.


    However you may be surprised that the Office of Fair Trading considers most of these commonly used behaviours to constitute harassment. Here is a link to their guidance: [link]


    This means that this is in breach of the Protection from Harassment Act , as well as involving the common law offence of Harassment of Debtors.


    It has been mentioned previously on this site that it is possible to bring a private prosecution under this Act. This is technically possible, but is not in my view advisable.


    A better course of action is to use this Act in civil proceedings against those perpetrating the harassment. This can include getting an urgent Interim Injunction to stop the behaviour you are affected by eg constant nuisance calls. You can also ask for compensation (damages). Remember that if a DCA is acting as agent for an OC, the OC is vicariously liable for the behaviour of its agents.


    If you are already in litigation, ie the creditor or their agents are taking you to court, you can counterclaim for harassment contrary to the Protection from Harassment Act as well as defending the claim. Unfortunately you now have to pay a fee to counterclaim.


    If you are not already being taken to court by them eg for money they allege you owe, you can sue the DCA and/or the OC for harassment if any of their conduct breaches the OFT guidelines above.
    How to get an Urgent Interim Ex Parte Injunction under the PHA



    1. Keep a record of everything which happens, including the times and dates of telephone calls, and the effect on you and other members of your household eg calls were early or later, your spouse was upset, you were disturbed before 9am when getting ready for work, etc.




    1. If they get through to you, do not discuss the matter except to say that they must put everything in writing and you will deal with it when they do.




    1. If they continue to call, send a letter saying that you have asked for matters to be in writing and that if they contact you by any other means, you will deem this to be Harassment and apply without further notice for an Injunction against them. Refer them to the OFT guidance and enclose a copy of these; state how it has been breached. There is a telephone harassment template letter on this site which you can use with suitable adaptations. Make sure you send the letter by recorded delivery and keep a copy.




    1. If matters continue despite this, you can now apply to the County Court for an injunction restraining harassment.




    1. An injunction is normally initially granted on an interim basis. This means that it is an interim order in an existing claim. However, in this situation, you can make an interim application and undertake to issue the claim it is interim to within an agreed period of time, eg 3 working days.
    2. You will need the following items to make your application, which should normally be in your local County Court:

    - an Interim Application Notice form (downloadable from the HMCS site);
    a Witness Statement setting out what has happened and how it is affecting you and others;

    • a Draft Order of the Order (s) you want the Court to grant (example separately).


    • the Application Fee, or else Form EX160 with evidence of your benefits or income

    If the Defendant is making your life a complete misery and won't go through proper processes, you may want to ask for an Unless Order (link to separate thread) requiring them to take you to Court within the next 28 days or never contact you again. (These are relatively easy to get, as the Courts do not like Ocs or DCAs trying to extort money by bullying instead of resolving the dispute through the courts and the legal system). If they have a genuine claim which will stand up to scrutiny, why should they not issue in Court ? If you accept their claim, in full or in part, you can still negotiate and/or offer to pay, either in full or by installments.



    1. You should normally expect to go before a Judge on the day when you take these documents into the court office, so be prepared for doing this, and if possible dress suitably, dark suit if possible if not jacket and tie for guys and neat dark clothes for women; avoid jeans, trainers and leggings.
    2. Be prepared that you will need to issue the full claim against the Defendant for their Harassment within a very short time eg 3 days, so as soon as you are able, get working on this. A Claim under the Protection from Harrasment Act needs to be issued using a Part 8 procedure not Part 7 (see separate post). It is automatically allocated to the Multi-Track. The final disposal of the case has to be by a Circuit Judge, but a District Judge can grant an Interim Order.
    3. If you are granted the Order you apply for, it is time limited and will have a return date for going back to court. The Defendant will very likely be extremely keen to settle with you in the meantime, so think about on what terms you might be willing to settle, eg drop all claims against you; remove all relevant defaults from your credit files, never contact you again etc.

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    Default Re: Drafting particulars of Claim...Advice required

    Your local authority may have a private housing advice service, it may be part of Environmental Health or of Housing, they may be some help with this.

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    Default Re: Drafting particulars of Claim...Advice required

    Thank you to SpringerSpaniel for taking the trouble to help. I can assure you that it makes a huge difference to life challenges like this. The Northampton Bulk Clearing Centre has now sent me the Acknowledgement of Service which shows that the Landlord has
    has returned the Acknowledgment of Service with one box ticked as 3. I intend to contest jurisdiction. The other two boxes namely 1. I intend to defend all of this claim and 2. I intend to defend part of this claim - these two boxes have been left unticked. On the face of it, it seems that he's contesting the jusrisdiction alone and not contesting the Claim when I was expecting that he might. What are the implications here in terms of the Defendant contesting jurisdiction please? Will he be allowed to file a defence after he has indicated that he won't, by not ticking the defence box? Please note that the money I'm claiming is not for the harassment because I believe this is a different process which is complicated. I'm suing the landlord for the additional rent my family and I had to pay when we vacated the rented property due to the harassment.

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    Default Re: Drafting particulars of Claim...Advice required

    Can you post your particulars of claim with any personal info like name and address taken out ?

    It sounds as if you are arguing that the lease is frustrated by the harrassment. It is hard to win an argument about frustration of a lease. The more usual remedies are to seek an injunction restraining harrassment and compensation.

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    Default Re: Drafting particulars of Claim...Advice required

    Sorry to intrude on your your thread but wondered if there is any chance the info on here could be stickied. I mean the format for the POC and the post about Bundles please.
    Enaid x
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    Default Re: Drafting particulars of Claim...Advice required

    Thank you SpringerSpaniel. I'll post my PoC this evening. I should have clarified at the beginning (and I'm sorry that I didn't make this clearer before) - the main thrust of my claim against the landlord is negligence. This allows me to set out and evidence breach of contract and a duty of care because of the incidents that happened e.g. LL wrongly alleging breach of contract before a harassment campaign ensued, forcing my family and I to move out of the property before the end of the term of the tenancy agreement. Therefore the quantum of my claim is purely my 'out of pocket' costs because I had to pay two lots of rent - for the rented property I vacated and the rented property I moved into because the harassment was distressing my family. I decided that to pursue a harassment claim was probably too complicated for me to do since my family has moved out of the property. But I'm using the harassment to support a breach of contract on the part of the LL. With regards to the LLs allegation that I breached the contract, I paid a Solicitor a nominal fee to look into the matter and he concluded that there was no breach of contract on my part whatsoever. The LL's argument was that because I had started sharing the 2-bedroomed property with my wife and daughter, I was 'sharing' the property contrarty to a clause in the tenancy agreement which said that I could not share or sub-let the property. I understand that living witn my wife and kid does not constitute the 'sharing' within the term in the agreement.

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    Default Re: Drafting particulars of Claim...Advice sought

    Thank you for the help from members without which I would not have got this far with the attached particularised breaches extracted from my Particulars of Claim.

    I'd be very grateful if you could please cast your eyes over the attached
    Particulars of breach of contract. The other thing is that I seem to be confusing 'breach of contract' with 'negligence'. I'm thinking that a breach of contract happens due to negligence. I'd welcome some enlightenment please. Please see the pdf attachment. I'll be grateful for any comments please so that I get these particulars right. Thank you. [file attached].
    Attached Files Attached Files

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    Default Re: Drafting particulars of Claim...Advice required

    i) You've only posted, or I've only been able to download paras 18 - 20

    ii) Mostly this is very good, but I have a query re para 20 for you: are these civil proceedings (as I had thought) for you to claim compensation; or are you arguing criminal conduct and bringing a private prosecution ?

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    Default Re: Drafting particulars of Claim...Advice required

    re breach of contract v negligence

    There is a hierachy of causes of action:

    1. Best if possible is to argue breach of statutory duty eg breach of protection from harrasment act, breach of prevention of eviction act etc.

    2. If this is not possible, use breach of contract, if a written agreement is relied on, attach a copy to your POC and state that you are relying on it.

    3. Only if neither of these are availabel to you, shoudl you turn instead to a claim in the tort of negligence, which is defined as breach of a duty of care. In your POC you should argue that a duty of care was owed and why this was so.

    If you post the whole POC but redacted it will be easier to give more advice.

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    Default Re: Drafting particulars of Claim...Advice required

    I'll give it a go.

    Breach of contract is breaking a 'major' term of the contract, one which 'goes to the root of the contract'.

    It will be for a court to decide whether the term is sufficiently important.

    The tort of negligence involves a legal duty of care owed, a breach of that duty, & consequent damages.
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    Default Re: Drafting particulars of Claim...Advice sought

    Thank you all very much. Please find the attached Draft PoC and as always, I'd really appreciate your counsel, ideas and comments which I can then incorporate into the final draft which I must send as soon as. The thrust of my action is breach of contract but I'm unsure as to whether this is coming across as that in the attached document which I've developed using ideas from members of this site to whom I'm truly grateful. It's people like you who make the difference in the lives of ordinary people who often find themselves face to face with an injustice. Please see the attached file....over to you SpringerSpaniel and others. I'm grateful for your time and effort which is priceless I dare say!
    Attached Files Attached Files

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    Default Re: Drafting particulars of Claim...Advice required

    I wanted to send an attachment to SpringerSpaniel via the private message route, but I cannnot find a way of doing this. Can anyone shed some light please id possible?

    SpringerSpaniel has kindly offered to review by Particulars of Claim. Thank you ever so!
    Last edited by Tigs; 2nd February 2012 at 19:16:PM. Reason: typo

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    Default Re: Drafting particulars of Claim...Advice required

    If you PM Springer and ask for her email address, that would be the simplest route.

    xx








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    Default Re: Drafting particulars of Claim...Advice required

    Quote Originally Posted by SpringerSpaniel View Post
    re breach of contract v negligence

    There is a hierachy of causes of action:

    1. Best if possible is to argue breach of statutory duty eg breach of protection from harrasment act, breach of prevention of eviction act etc.

    2. If this is not possible, use breach of contract, if a written agreement is relied on, attach a copy to your POC and state that you are relying on it.

    3. Only if neither of these are availabel to you, shoudl you turn instead to a claim in the tort of negligence, which is defined as breach of a duty of care. In your POC you should argue that a duty of care was owed and why this was so.

    If you post the whole POC but redacted it will be easier to give more advice.
    From what I've seen of the PDF, the Protection from Eviction Act 1977 seems the most appropriate. It's the one we used more than anything else when I was in the police force. By the way, did you know the police can report landlords for process under the Protection from Eviction Act? The case normally gets passed to the local housing authority for processing on to hearing. In serious cases, a landlord can go down for up to two years.

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    Default Re: Drafting particulars of Claim...Advice required

    Quote Originally Posted by Tigs View Post
    I'm a litigant in person intending to file a claim against a Landlord for harassment. Can any of the members please point me in the right direction for some good examples of 'Particulars of Claim'. I have previously been threatened with 'strike out' in another case because my Particulars of Claim were not up to scratch. I'm now very weary of how I write the Particulars of Claim. I'd appreciate your help. Thank you.
    I am in a similar position against also my Landlord, the difference is that my landlord is a local authority.

    I have had my case suspended with the view in reinstating the case later this year if all fails, and if I wish to proceed with the claim. The reason for the suspension was due to my PoC being inconcise. I am trying to prepare a new PoC in order that my landlord understand my position; they are incalcitrant - they have now threatened me with costs if the claim is taken off the "stay."

    I have had a barrister's opinion that it is a breach of contract - however, please could anyone advise me if repairs have been carried out by 75% by a report devised by an Expert, could this mean that my landlord can slide out of the other 25% agreed works? And, where does the chain of causative stop if the acts to date have been negligent including property damage and their acts
    are continuing for the same reason that I brought the case to the courts.

    @LegalBeagle:
    I cannot open a PDF file. Can you download in another file format?

    Any advice would be great - thanks.

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    Default Re: Drafting particulars of Claim...Advice required

    The PEA is approproiate in these circumstances, but provides for criminal offences which cna be prosecuted via the police/CPS, or by environmental health.

    s27 of the Housing Act 1988 provides a statutory tort of unlawful eviction, which can give rise to a civil ratehr than a criminal remedy which is more likely to compensate the victim and has a lower standard of proof. It can also be argued that the landlord is in breach of the covenants of the lease eg covenant for quiet enjoyment, covenant to repair.

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    Default Re: Drafting particulars of Claim...Advice required

    I'm a litigant in person age 19 and i also suffer with duchenne muscular dystrophy a muscle wasting illness. I am intending to file a claim against Birmingham city council and their builder in the court of ECJ for breach of duty of care/negligence. and a separate claim for breach of statutory duty . Can any of the members please point me in the right direction for some good examples of 'Particulars of Claim'. I have previously been threatened with 'strike out' and it was finally struck out because i could not get help prior to attending the oral appeal hearing because my Particulars of Claim were not up to scratch. I'm now very weary of how I write the Particulars of Claim. I'd appreciate your help. Thank you.

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    Default Re: Drafting particulars of Claim...Advice required

    error
    Last edited by miliitant; 19th October 2012 at 17:19:PM.

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    Default Re: Drafting particulars of Claim...Advice required

    Malilla, your case may involve disability discrimination and hence breach of the Equality Act 2010. You may be able to get free help from the Disability Law Service or form a Law Centre www.lawcentres.org.uk. I think there is one in Brimingham.

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    Smile Re: Drafting particulars of Claim...Advice required

    Dear Spaniel,
    I am asking these questions regarding a contentious probate claim. i am in a situation where there is little alternative but to go to court. not having the £30-£100,000 ball park figure to fight the case with a barrister i am having to conduct the claim myself.

    this would be an N2 form as well as the relevant forms to be served on the defendant.
    the case involves fraud, forgery and lack of testamentary capacity as the testator suffered from atypical Alzheimer's and was delusional.
    so upon testate i would be the sole beneficiary. i.e. im am challenging the will and require the executrix/s to prove due execution of the will.
    the purported will is questionable to say the least. it is the signature of the witnesses that appear to have been forged.
    as it is a fraud/forgery claim as i comprehend it, it would not be suitable for a supeonia or citation, but i do need the apparent executrix to bring in the will so i will be using practice direction 57.

    i am having difficulty in making sure that i fill in the particulars of claim correctly as i don't wish to fall into the trap of basically writing a witness statement when it needs to be a particulars of claim. ie i hav eto keep it concise.
    naturally i am aware that you do not know the full details of the case all cases are case specific.

    i have investigated the case thoroughly as possible and i can show many areas where the individual concerned has conflicted their own words.
    i have evidence from the Court of Protection as i was in the process of challenging an EPA when the testator died so the COP lost jurisdiction.

    what i am looking for is advice and even better still a draft of a particulars of claim in a contentious probate matter so as to use it as a template.but i assume in essence they are similar in terms of setting out the facts.

    the problem is that i have ALOT of documents/evidence. i went to the police but was rebuffed and told CIVIL SIR.....i have sought legal advice but due to the purported value of under £5000 makes it less likely that solictors will take on the case. however this estimate is false and i can show/indicate it to be so.
    i have a handwriting report written by a document examiner which states that the executrix is the author of minimum of the first witness's signature.
    i have gained further writing and in my opinion it would go even further in conclusively proving the case.

    kind regards Judge Justice

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    Default Re: Drafting particulars of Claim...Advice required

    Hi, this is my first post so apologies if I've sent it to the wrong thread.

    I need advice on how to draft Particulars of Claim online through MCOL.

    I was working as an IT support engineer for a client through an agency. The client terminated my contract without any reason given whatsoever. The contract that the agency supplied did not have details of assignment details form included in the contract. This contract therefore had no length of notice period stated in the contract.

    I've had a Solicitor already prepare & send 2 letters claiming Breach of contract to the agency, who are denying any wrongdoing.

    In order to take this claim to the next level I have signed up to the Money Claim Online service & wish to pursue the matter via the online service.

    My issue is that I need help drafting my Particulars of Claim online. The online process only allows 1080 characters to be entered & I want to make sure the format of my POC is correct.

    This process is new to me so any help or advice on the above would be greatly appreciated.

    Thanks

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    Default Re: Drafting particulars of Claim...Advice required

    Quote Originally Posted by sistu View Post
    Hi, this is my first post so apologies if I've sent it to the wrong thread.

    I need advice on how to draft Particulars of Claim online through MCOL.

    I was working as an IT support engineer for a client through an agency. The client terminated my contract without any reason given whatsoever. The contract that the agency supplied did not have details of assignment details form included in the contract. This contract therefore had no length of notice period stated in the contract.

    I've had a Solicitor already prepare & send 2 letters claiming Breach of contract to the agency, who are denying any wrongdoing.

    In order to take this claim to the next level I have signed up to the Money Claim Online service & wish to pursue the matter via the online service.

    My issue is that I need help drafting my Particulars of Claim online. The online process only allows 1080 characters to be entered & I want to make sure the format of my POC is correct.

    This process is new to me so any help or advice on the above would be greatly appreciated.

    Thanks
    My advice is, if you cannot particularise the claim in 1080 characters, then my suggestion is to issue the claim the old fashioned way by sending paper particulars of claim

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    Default Re: Drafting particulars of Claim...Advice required

    My apologies for this late reply. Please do ignore if you have already gone past this stage.

    The MCOL process allows you 14 days to serve the particulars of claim, provided you tick the relevant box which you need to look out for when you complete the on-line form. This means that you can submit an outline claim on-line within the number of characters allowed, and then follow this up with more deatailed particulars of claim. But you must make sure that you furnish the other side with the PoC within before the deadline date.

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