Obtaining a good mark in Drafting is very similar to obtaining one in Opinion Writing. If you can crack the process behind one, chances are you are well on your way with the other. Common to both areas is the need for structure, clear thought patterns and, to a greater or lesser extent, a set of stock phrases.
Drafting itself is normally split into a set of sub-topics relating to the different styles of document and the differing rules which apply to each. The main types of documents you will be learning to draft include Particulars of Claim, Schedule of Losses, Defences and Defence and Counterclaims. Each document follows its own format and we will be covering each of them over the next few months. For this week, we will start with a Particulars of Claim.
If typing up a Particulars of Claim, at this point we tended to put in the formalities at the end of the document too. It saves forgetting them afterwards. Again – check with your provider, but we were required to include our name, fictional chambers, a statement of truth, the date and an address to which documents should be sent (usually the Instructing Solicitor’s).
Your first paragraph should now be a pithy explanation of the facts. If you are going to rely on a fact elsewhere in the document, it ought to appear here first. That said, keep it brief. It is very easy to lose marks if you have included unnecessary information here.
In a tort-based Particulars of Claim, your next section will invariably start along the lines of ‘The said accident was caused wholly or in part… by the Defendant’. In other words, the ‘what’ you are complaining about and then ‘why’. Remember, you are now drafting pleadings so we revert back to calling them the Claimant and Defendant, not the parties’ names as in Opinion Writing. You will then set out a list of the things the Defendant is alleged to have done wrong.
So, we have said what happened and why it is the Defendant’s fault. The next question could be encapsulated in ‘so what?’. Why is your client here? What have the above actions caused your client to suffer? You need to set out the exact damage caused, be that physical, personal or any combination. When dealing with personal injury, you need to set out the immediate steps that were taken to treat the injury, e.g. being taken to hospital, etc., as these factors can affect the amount of money claimed. If there is a doctor’s report, précis it, then remember to attach it in accordance with the relevant Practice Direction.
If the past and future losses are simple, you can then set them out here too. Invariably on the BPTC, however, they will be anything but simple and will require their own schedule. Again, make sure you attach this correctly to the pleadings as a separate page.
Then comes your next set of easy marks. Remember to include a claim for interest under the relevant Act. If you have different types of loss, remember to specify the rate for each and the period during which interest is claimed.
Then there needs to be a reference to compliance with the relevant Pre-Action Protocol. Helen’s provider required the insertion of: (Instructing Solicitors are requested to confirm if the Pre Action Protocol has been complied with by either party). In practice, you would be adding more detail here, after discussion with the solicitor. For the purpose of the course though, we would expect your provider to require a similar line or phrase.
All that is then left is to insert the prayer. Again, remember to list everything you have set out above, including interest. Double check that you have the formalities correct at the bottom and press the ubiquitous Ctrl+S.