Particularise of Claim .. Please HELP

[EmmaAnderson]

I'm newbie .. I'm sorry if I'm posting this in the wrong place .. but please I need your help

I have paid £2500 (fees only) to do an exam with three organisations, I was provide with a faulty equipment and as a result I failed the exam.

I re-set the exam again and I paid another £2500. Again I was provided with another faulty equipment. I complained about it but without any luck .. I failed the exam again .. Following the exam, I requested a disclosure and I also found that some of the results were obviously changed from pass to fail

I could not get any legal help as I could not afford it and I had no option but to take a legal action .. Most of the claims were struck out but I was given a chance to particularise the remaining claims .. You know in such a situation, there is no specific contract .. but rules and regulations for the exam .. would that be considered as a contract .. I'm struggling to particularise it .. for example if it was negligence or breach of contract how can I particularise it .. how to legally show that there is a cause for action .. breach of duties .. breach of contract (in this situation is it a contract) .. How to legally assert the duties and then the breach of duty and then the loss flowing from any such breach

Please Help ..

[jaydee]

Re: Particularise of Claim .. Please HELP

Just a suggestion! If the issue relates to a service provide to you then I guess this matter may be a regulated by consumer law. Why not contact your local Trading Standards and ask for there advice

[EmmaAnderson]

Re: Particularise of Claim .. Please HELP

Thank you for your reply .. I tried this but they were not that helpful

[R0b]

Re: Particularise of Claim .. Please HELP

Questions:
1. Are you able to expand on your problem with the equipment?
2. what did you claim for originally, what claims were struck out on what basis?
3. What were the defences to these claims?
4. What claims has the judge allowed you to particularise?
5. Do you have a contract written or was this made orally?
6. when you complained did they respond?
7. When is the next hearing?
8. When you refer to disclosure and you say results were changed from pass to fail, how did this occur? was it as a result of the machine or someone did this purposely?

In short, a particulars of claim provides the court with material facts of the dispute at hand. You will need to outline the parties, background, terms of the contract you want to refer to that you allege are in breach, and state that the person/company was in breach of the contract and then state why. You will also need to mention the remedy you are seeking i.e what are you claiming back.

Do you have a template already, have you already started drafting a particulars of claim?

[EmmaAnderson]

Re: Particularise of Claim .. Please HELP

Thank you very much for your reply:

1. Are you able to expand on your problem with the equipment?

An equipment is provided to perform a task with it .. to be able to pass the exam, you must have a stable equipment .. the equipment provided was loose and not stable .. so it was impossible to do the task with it .. it is like doing a task in a moving target

2. what did you claim for originally, what claims were struck out on what basis?

The claim was originally about discrimination, negligence, breach of contract, fraud, not complying with the data protection act (DPA) .. All struck out as having no reasonable prospective of success .. The discrimination was considered as out of time ... fraud and DPA have no prospective of success and the appeal court give a permission for the appeal to be heard on the following grounds:
A) whether it is factual that I was provided with faulty equipment and whether that give rise to cause of action
B) whether it is factual that there was error in recording the results and whether that give rise to cause of action by way of breach of contract or duty
C) Cure by Amendment

but if I do no fully particularise the remaining claim, the appeal will be refused .. I mean their solicitors keep saying that I have no cause of action. I did not identify the duties of care or the contract .. I did not identify the breached duties or breached terms of contract and I did not I did not identify the following loss

3. What were the defences to these claims?
In the appeal
a) For the remaining claims ... as mentioned above no cause of action, no duties of care .. etc
b) It is too late to amend the claim now
c) They also referred to Eatwell v Smith & Williamson [2003] EWHC in which the judge said ... "Although it seems harsh at face value, in my judgment, it is probably a case where it is necessary to be cruel to be kind. That is the better course here, balancing the merits of the claim, such as they are, against the delays that have taken place, the likely problems in the future, the prejudice to the defendants, in having to deal with a weak, late, delayed claim, is to actually bite the bullet. And to decide that the proportionate course, in all the circumstances, is to strike out the claim, and that is what I am going to do.”




4. What claims has the judge allowed you to particularise?

Answered above in Q2 (A + B + C)

5. Do you have a contract written or was this made orally?

There was no such a contract which is signed by both parties .. the fees for the exam was paid over the internet and there is rules and regulations for the candidates only .. in the rules and regulation the equipment name is mentioned but there is nothing to say that it should not be faulty but that should go without saying .. However, the rules and regulation say that the commonly used equipment will be provided

6. when you complained did they respond?

They did respond and say that there is a record of the faulty equipment but the records say that I complained about it at the beginning of the exam and then they fixed it and they falsely claimed that I did not complain about it again .. However, In the internal emails which was disclosed, it is clear that this was not the case and there was a purchase order of £200 to fix the equipment after the exam

No response was provided in regards to the change of the results .. They falsely claimed that after I send my complain that they asked me if I still need an answer and I said no !!

7. When is the next hearing?

In about a month

8. When you refer to disclosure and you say results were changed from pass to fail, how did this occur? was it as a result of the machine or someone did this purposely?

I believe it was done purposely ... I found out after the exam that one of the senior managers is someone that I know and I had personal issues with him in the past .. In addition, I believe that part of this is also happening in a regular basis to increase their income .. It is highly unlikely to be by a machine .. the actual results which were "pass" were written by an examiner (hand written) then that was changed in the published results to fail

9. Do you have a template already

No I do not have a template

[R0b]

Re: Particularise of Claim .. Please HELP

Thanks for that Emma, how long ago did this faulty equipment issue happen and when did you first bring a claim?

Also yu say theres no written contract but rules and regulations, can you supply us with them or at least a link to them?

I suppose this seems to be an issue of bailment which gives rise to a contract and therefore implied terms relating to the supply of goods and services act will apply (providing they have not been excluded) and you could potentially argue satisfactory quality and fitness for purpose which would then be a breach of contract and your loss of 2,500 as a result.

an laternative and somewhat complex argument could be bailment by way of hire - not sure if its relevant though.

Got to be honest it sounds fairly complex, is the appeal in the high court or?

I've not heard of cure by amendment before and not entirely sure what it means?

[Debt Camel]

Re: Particularise of Claim .. Please HELP

What was the exam?

Why did you go back to them if the equipment was faulty the first time?

Did other people take the exam at the same time as you and did they also fail?

[EmmaAnderson]

Re: Particularise of Claim .. Please HELP

Thank you for the replies:

Q: .. how long ago .. ?

The fist exam happened about a year before the claim. However, the second exam happened about 6 month before the claim.

Q: .. rules and regulations, can you supply us with them ..?

The rules and regulations are very bulky and very complex to digest .. you will not
find anything else in them apart from what I mentioned above .. the name of the equipment and that the commonly used equipment will be provided

Q: ... it sounds fairly complex, is the appeal in the high court or?

I agree with you it is complex .. No, it is the civil county court

Q: ... cure by amendment .. not entirely sure what it means?

I'm also confused about the "cure by amendment" but I believe it means that with a better amended claim which is only focused on the equipment and the error in results I might have a reasonable prospective of success

Q: What was the exam?

The exam was a professional exam I do not want to say what is it exactly in public but let is say it is a medical exam or engineering exam

Q: Why did you go back to them if the equipment was faulty the first time?

I have no other option. They are the only provider for the exam

Q: Did other people take the exam at the same time as you and did they also fail?

There are about 300 candidates .. some passed and some failed but the internal emails show that my equipment was loose but the other candidates equipments were not. My equipment was not used for the next batch ..

[R0b]

Re: Particularise of Claim .. Please HELP

hi Emma, I appreciate you saying that there is nothing within the regulations except for the name of the equipment and that it is regularly used, however there could also be disclaimers in there which exclude any arguments that you could advance in court. If the court is giving you another stab at making your claim then you will need to make sure it is watertight.

I understand you dont wish to divulge all information but without the full facts at hand, it is very difficult to help you and so what we can provide is limited. That being said I shall message you a template for particulars of claim along with some guidance on the matter to help you draft.

I think however, the starting point for your arguments relating to the faulty equipment will be under the Supply of Goods and Services with regards to fitness for purpose. but for (commonly known as the "but for" test) the equipment being faulty you would have been able to complete your exam properly.

As for the second part, think we have insufficient information to answer that.