Drafting particulars of Claim...Advice required

[Tigs]

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.

[SpringerSpaniel]

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.
    

[SpringerSpaniel]

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.

[SpringerSpaniel]

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.

[Tigs]

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.

[SpringerSpaniel]

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.

[enaid]

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

[Tigs]

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.

[Tigs]

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].

[SpringerSpaniel]

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 ?

[SpringerSpaniel]

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.

[charitynjw]

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.

[Tigs]

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!

[Tigs]

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!

[Celestine]

Re: Drafting particulars of Claim...Advice required

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

xx