statements of case (particulars of claim, defences, counterclaims, and amendments)

Statements of case are documents which contain the alleged factual basis on which the claimant or defendant relies to make or defend a legal claim.

They set out:

• the alleged facts which the party relies on
• that constitute one or more causes of action
• which must be proved by evidence on the balance of probabilities
• to succeed on their case at the trial

Statements of Case mark out the parameters of each party’s case.

Once the opposing parties’ statements of case are exchanged, they will show the extent of the dispute between the parties.

Historically, they’re collectively referred to as "pleadings", and the case set out in a statement of case as "the pleaded case". Those terms are still used. 

There are limits to what should be included in a statement of case. There’re meant to:

• set out a concise statement of the facts on which the party relies
• be summaries of facts relevant to the legal claim made – the cause of action.

The Civil Procedure Rules (CPR 2.3(1)) defines Statements of Case as:

1. a claim form & particulars of claim
2. defence
3. reply to defence
4. counterclaim, and
5. defence to counterclaim.

A witness statement is not a statement of case. It contains evidence of facts alleged in statements of case. Witness statements are the way that parties put evidence before a court to prove the allegations of fact made in a statement of case.

Here's what we cover below:

• Particulars of Claim
• Counterclaims
• Further Information and Clarification
• Defences
• Reply to Defence
• Remedies for Defective Statements of Case
• Amending Statements of Case
• Example: Suing for Breach of Contract
• Words used in Statements of Case
  1. admit
  2. deny
  3. not admit
  4. as alleged or at all
  5. further or in the alternative
  6. in the premises

When a claim form and particulars of claim are filed and the defendant chooses to defend the claim, a series of documents might be filed.  When a defendant counter-sues - sues the claimant - the claim is known as a counterclaim, and further documents are filed by the defendant and the claimant to address the claims made in the counterclaim.  We come on to that further down.

Assuming the case proceeds on the claim alone (ie there is no counterclaim), the documents which may be filed by the parties (in order) are:

• Claimant: Claim Form + Particulars of Claim
• Defendant: Defence
• Claimant: Reply (to the Defence)

So legal claims start with the Particulars of Claim.

 

Particulars of Claim

The Particulars of Claim are contained in either:

• the claim form, or
• a separate, free-standing document, entitled Particulars of Claim.

Purpose of Particulars of Claim

The Particulars of Claim:

• is amongst the most important document for the claimant in litigation, because it says what the dispute is all about, and
• informs the defendant of the case they have to defend.

All other court documents follow from the particulars of claim.

It defines what is relevant to:

• what the defendant must address in the Defence
• the first case management conference
  • case summary
  • list of issues
  • case management directions
• disclosure
• witness statements
• skeleton arguments for trial
• the trial bundle
• what is argued at the trial
• what has to be decided by the court

Where the particulars of claim do not disclose a cause of action, it may be struck out because it does not disclose a claim recognised by law. Likewise summary judgment may be available when there is no defence to the claim.

Central Principles

There are two central principles with Particulars of Claim.

• The claimant must state all the facts necessary for the purpose of formulating a complete cause of action against the defendant, and
• The claimant must give the defendant sufficient information about the facts alleged to enable them to understand the case that must be defended.

(The Particulars of Claim must also set out the remedies claimed. See below)

If a claimant wants to bring a legal claim, it must be a claim recognised by law.

It also needs to be framed in a way that the defendant (and the court) can understand it.

Inadequate Particulars of Claim

When those prerequisites are not met:

• defendants can’t prepare their defence as they should, because the claim is not clear
• unnecessary expense will be incurred by opposing parties preparing to defend or respond to allegations, because the legal claim can’t be understood
• courts will not be sure of the case which it must decide

In those cases, the Particulars of Claim are said to be “embarrassing”: the opposing party can’t respond to the allegations properly. They don’t have the required “particularity”. And the other party uses that word "embarrassing" in their statement of case, it's an indication that a strike out application may be being hatched.  

 

Where’s the line drawn?

Particulars of Claim must be “sufficient”.

If all of the facts pleaded in statement of case are alleged are assumed to be true, and the test for summary judgment is not satisfied,  a cause of action has been made out. The legal action also probably isn't ripe for a strike out application.

At the other end of the scale, the claimant is not required to concede to excessive demands for detail.

Whether the grounds for the claim have been properly particularised also lies in part in whether the opposing party can understand the case being advanced.

Rather than strike out the action, it may be that a court would be more inclined to order that amended particulars of claim should be filed and served to clarify matters. If the defendant can't understand the claim, it might be that the court can't either.

 

Specific Requirements

Some causes of action require the detail of the claim to be drawn out in detail in the Particulars of Claim.

The cause of action may be so serious or have particular requirements, that the rules of court require the parties to provide specific details.

They include allegations of:

• civil fraud
• the fact of any illegality
• details of any misrepresentation
• breaches of trust
• notice or knowledge of a fact relevant to the dispute
• details of unsoundness of mind or undue influence
• details of wilful default
• facts relating to mitigation of loss or damage
• aggravated damages or exemplary damages

If they are included, the other party can't properly prepare their own case.

Fraud Claims

Allegations of fraud, dishonesty and bad faith deserve special mention.

It gives a clear example of what is required generally.

Vague allegations of civil fraud are not enough to establish or infer liability from any statement of case. It’s not adequate in a statement of case.

The allegations must be detailed enough to show how it is said that the opposing party has acted fraudulently with the fraudulent intention.

The actual facts and circumstances which come together to imply, or at least very strongly suggest civil fraud must be set out explicitly. The words “fraud” or “dishonesty” don’t even need to be used. Anything in the ballpark of allegations of serious impropriety qualify for proper particularisation.

That happens when one party makes statements to the other on which they were intended to act, and those statements were untrue, and said to be known to be untrue.

 

Relationship between Fraud and Innocence

Alleging fraud is a serious business.

If fraud, dishonesty or bad faith is alleged, must be drawn out to show how it is said that was the case.

It may be that the allegations are such that the facts alleged from which fraud might be inferred are consistent with innocence.

So much so, that if the allegations can be read as being consistent with innocence, a court will almost certainly not make a finding of fraud.  

The pleading is adequate if the allegations of fact bear no meaning other than fraud.

Here’s some case law on the point.

In McDonald's Corp v Steel (1995), Neill LJ said:

It is true that a claimant must not put a […] a plea of fraud […] on the record lightly or without careful consideration of the evidence available or likely to become available.

In Davy v Garrett (1878), Thesiger LJ said:

[…] no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts. […]

It may not be necessary in all cases to use the word 'fraud' - indeed in one of the most ordinary cases it is not necessary.

An allegation that the defendant made to the plaintiff representations on which he intended the plaintiff to act, which representations were untrue, and known to the defendant to be untrue, is sufficient.

The word 'fraud' is not used, but two expressions are used pointing at the state of mind of the defendant - that he intended the representations to be acted upon, and that he knew them to be untrue.

It appears to me that a plaintiff is bound to show distinctly that he means to allege fraud. In the present case facts are alleged from which fraud might be inferred, but they are consistent with innocence.

They were innocent acts in themselves, and it is not to be presumed that they were done with a fraudulent intention.

Fraud, dishonesty and bad faith cannot be inferred from the absence of particulars. It will not be presumed from the text of the statement of case.

If there is no evidence to support the claim (which would have been exchanged in pre-action correspondence) the allegations or the entire claim may be struck out.

 

Requirements for Particulars of Claim

Also, Particulars of Claim must:

• include a statement of value: state the amount of money claimed or whether the amount is:

• • not more than £10,000
  • between £10,000 and £25,000,
  • over £25,000, or
  • is not known to the claimant

• in contract claims:
  1. written contracts: annex copies of contracts and other documents containing the agreement between the parties, where relevant
  2. oral contracts: set out the precise contractual words spoken, and state by whom, to whom and where the words were spoken
  3. by conduct: specify any agreement by conduct relied on, and state by whom, when and where the acts constituting the conduct were done
• interest: state interest is claimed, and if so:
  1. how much
  2. the rate of interest
  3. the grounds of the alleged entitlement (whether under a contract or statute such as the Senior Courts Act, County Courts Act or under a contract)
  4. the method of calculation, and
  5. the amount claimed to a date no later than the date the proceedings are filed;
• damages: state the grounds on which aggravated damages or exemplary damages are claimed, where applicable;
• be endorsed with a statement of truth.

 

Counterclaims

Counterclaims are claims made by the defendant against the claimant.

The same principles apply to the statements of case filed by defendants when they prepare counterclaims.

Counterclaims do not need to be connected or related to the claims made by the claimant. 

For example, a claimant (say an IT consultant) might sue a defendant (a company) for money due and payable for professional services supplied by the IT consultant. The defendant might:

1. defend the claim on the basis that the services supplied were defective, and on top of that,
2. bring a counterclaim for the loss and damage caused to the company caused by the defendant company.

When a defendant files a counterclaim, they are called the counter-claimant to distinguish them in their role as the defendant. They have two roles in the case: (1) as the defendant, and (2) as the counter-claimant.

A counterclaim is set out in a court document with the formal named of "Counterclaim". The statements of case which correspond to the court documents which a claimant would file and serve are as follows:

 

Court documents filed in Counterclaims
Court Document:	Corresponds to:
Claim Form + Particulars of Claim	Counterclaim
Defence	Defence to Counterclaim
Reply	Reply to Defence

 

When counterclaims are filed, they should be included in the same document as the Defence to reduce the number of statements of case in the case.

For example, rather than just file a Defence, the counter-claimant would file a “Defence and Counterclaim”.

There are other court documents which might be filed. Here's a list:

 

Order of Documents: What parties file
Court Document	Who files it?
Claim Form + Particulars of Claim	Claimant
Defence and Counterclaim	Defendant / Counterclaimant
Reply and Defence to Counterclaim	Claimant / Defendant to Counterclaim
Reply to Defence to Counterclaim	Defendant / Counterclaimant

As well as these, a request for Further Information and Clarification might be served to obtain further and better particulars for any of those documents.

Further Information and Clarification

Often, parties preparing Particulars of Claim and Defences do not make their claims clear.

Requests for Further Information (also “Part 18 Requests”) exist to provide a process for a defendant (in the case of Particulars of Claim) and a claimant (in the case of a defence) to ask questions about the opponent’s pleading: ie their case. Likewise when the defendant files and serves a counterclaim.

When a party does not understand the case of the opposing party, a Part 18 Request can be prepared and served.

Provided that the Requests are within the bounds defined by Part 18 of the Civil Procedure Rules, the receiving party must answer the requests.  If the opposing fails to do so, then the court may order that the receiving party answers them.

Part 18 Requests have their limitations. It’s not a general licence to ask anything and everything about the other side’s case.

They are requests which are:

"strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.": Practice Direction CPR 18

If the questions are outside the scope of the rules, the other side has no obligation to answer them, but should say why they don’t in any case.

The scope allowed for questions in a CPR 18 Request has been put this way by the High Court:

If the case which is brought against [a party] is vague or incoherent [that party] will not, or may not, be able to [plead in response, disclose documents which are relevant or prepare witness statements to support their case].
Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense.

For these reasons it is necessary that a party's pleaded case is a concise and clear statement of the facts on which he relies …

It is not fair and just that the Defendant cannot be sure of the case he has to meet.

Further Information and Clarification (which are the responses to Part 18 Requests), is not the place to add causes of action to a party’s case. They are used to clarify what is set out in the Particulars of Claim or Defence.

Including evidence in Further Information makes comprehension of the Further Information difficult. It’s not the place for it. Evidence is for witness statements.

 

Defences

The same principles which apply to Particulars of Claim apply to Defences.

However, Defences have a specific and different role in litigation. They answer the allegations in the Particulars of Claim.

In a properly drafted Defence, a defendant:

• admits,
• does not admit, or
• denies,

each allegation set out in the Particulars of Claim.

When a defendant disputes an allegation (ie denies it) they must:

• state why they dispute it; and
• give their own version of events.

When that’s not done, a denial is “bare denial” and not a defence at all.

As with Particulars of Claim, there are specific matters which a Defence must include.

• a response (admit, not admit, deny) every allegation of fact in the Particulars of Claim
• claims for a set-off, ie where the defendant says that the claimant owes them money
• details of a defence raised based on a limitations period, which operate to extinguish the claim.

 

Reply to Defence

A claimant starts legal proceedings with a claim form and particulars of claim.

The defendant answers the case of the claimant pleaded in the particulars of claim in the defence.

The claimant then has an opportunity to answer the case of the defendant, by filing a reply to defence, or a "reply".

Likewise, when a defendant issues a counterclaim, the claimant will file a defence to counterclaim. The defendant (ie counter-claimant) may file a “reply to defence to counterclaim” to answer the case of the claimant in the defence to counterclaim.

Requirement to file a Reply to Defence

The claimant is not ordinarily required to file a reply to defence, and is not taken to admit the case of the defendant by not filing one.

A reply will be required where it wishes to raise any particular matter which must be pleaded. These are usually more serious allegations such as misrepresentation, fraud or illegality. The requirements for facts which must be pleaded in particulars of claim is a good guide.

Purpose of a Reply to Defence

When the claimant does file a Reply to Defence it serves to:

• narrow the issues in dispute between the parties
• provides better focus for both of the parties
• save legal costs in the long run, because less important factual matters do not need to be dealt with in evidence or at the trial

If the claimant wishes to file a reply, it must do so when it files its Directions Questionnaire, and serves it simultaneously. A Reply to Defence like other statements of case, must be endorsed with a statement of truth, in the same way as witness statements.

 

Remedies for defective Statements of Case

When pleadings are defective, an opportunity should be given to the offending party to correct it.

They should be:

• informed how they are said to be deficient
• invited to prepare Amended Particulars of Claim or Amended Defence, or
• served with a Part 18 Request to clarify matters.

If all is lost, the party is able to file a strike out application and/or summary judgment application to end the proceedings.

 

Amending Statements of Case

Statements of case are filed with the court, and served on the other parties.

The Civil Procedure Rules and case management directions set out the times by which that must be done by the parties.

Parties frequently wish to add allegations facts to statements of case to:

• add causes of action to the Particulars of Claim, particularly after disclosure or after receiving legal advice
• add to the grounds of defence which a party has come to realise is available after the original defence was filed and served
• provide further detail to the Particulars of Claim or Defence
• regularise the form of the statement of case, so that it complies with the Civil Procedure Rules

How Amendments are made

Statements of Case may be amended by a party:

• at any time before it is served, even if it has been filed
• after it has been served, by:
  • agreement with the other parties to the litigation
  • with the permission of the court.

Obtaining the permission of the court requires an application notice.

Prior to making the application though, it makes sense to a draft an amended statement of case and send it to the other parties to seek their consent to avoid the need for an application and obtain their consent, if that is possible.

When a party is successful with an application to amend, there are a series of usual consequences:

• the amending party is required to pay the costs of the opposing parties which are thrown away by the amendment. See the top of CPR PD17.1
• each other party will have an opportunity to amend their own statements of case
• courts will make directions to that effect, if the parties cannot agree between themselves

Adding causes of action and amended grounds of defence will be refused where they either:

• add nothing to the statement of case from a legal perspective, and/or
• have no real prospect of success, and therefore would be struck out or summary judgment awarded.

Other than those restrictions (and meeting the requirements for statements of case in Part 16 of the Civil Procedure Rules: don't miss the practice direction), courts are reluctant to prevent parties from advancing their cases in the manner that they wish to.

Amended Statements of case are required to be annotated with the basis upon which the amendment was made. This is done at the beginning of the document:

When by agreement, or where agreement was not required:

Amended [Defence] under CPR [rule 17.1(1) or (2)(a)] dated [date]

When permission of the Court was obtained:

Amended [Particulars of Claim] by Order of [[Mr/s] Justice [name] / [Master [Name] / [District Judge]] dated [date]

 

Example: Suing for Breach of Contract

Let’s take an example: Breach of Contract.

Here’s an (overly) simplistic hypothetical example.

Example: Particulars of Claim for Breach of Contract

To make out a claim for breach of contract, the claimant would need to show:

1. There was a contract between the claimant and the defendant
2. The contract had a term, whether a warranty, condition or innominate term
3. The contract was breached by the other contracting party, and
4. The claimant suffered damage which was caused by the defendant’s breach of contract.

This means that the claimant would say in the Particulars of Claim:

1. On [date], the contract was formed between the claimant and defendant.
2. Clause [number] contained a term of the contract.
3. That term stated “[The words of the term breached]”.
4. On [date], the defendant [specify the act or omission said to constitute the breach of the contract].
5. The defendant was thereby in breach of contract.
6. The Claimant has suffered damage caused by the breach by the defendant.
7. Particularise the loss suffered, which is claimed for recovery.
8. The Claimant claims remedies for orders for the defendant.
   The common remedies sought are:
   • to pay damages
   • Interest on damages at the statutory rate
   • An injunction (to prevent further breach) 
   • Specific performance (to require performance of a contract)
   • The Defendant pays the costs of the proceedings.

Particulars of claim are not intended to be drafted in a formulaic way. Provided the bases are covered, the claimant and defendant can plead their cases however they wish. It does make sense though to follow a logical order – chronological – and break up paragraphs so that the other party can refer easily to each allegation.

If you don’t, everyone notices. The court most of all. There’s no point making the court’s job harder. It won’t help you. Courts are there to resolve disputes. When you think about it, it’s actually quite a serious job. Why make their job harder? We’re all meant to be grown-ups.

Here’s another example, on the law of passing off.

 

Words and phrases used in Statements of Case

Term: “Deny”

Denying an allegation means that a party knows that the allegation is not true.

When an allegation is denied, the party should set out its own version of the facts, which give rise to the denial in their statement of case.

It is mandatory that the party does so. If it does not, it is a bare denial. In the worst cases, defences with bare denials may be struck out by the court.

Some allegations of fact are not suited to a straight forward denial. It may be that:

• part of the allegation should be admitted, where it would be futile not to do so,
• then carefully set out the denial in respect to the allegation, and
• not admit the rest of the allegation

Some allegations are deemed to be denied unless they are admitted. However these instances - such as a failure to deny a sum of damages claimed - are in the minority.

Even then, if the sum in dispute and claimed as damages is contested, reasons should be given for the denial of liability by the defendant.

Term: “Not Admit”

A statement of case contains factual allegations.

If it is not appropriate to admit an allegation in the statement of case, a claimant or defendant may elect to “not admit” the allegation.

That forces the claimant to prove the allegation with formal evidence.

A litigant should "not admit" an allegation where it:

• does not know whether the allegation is true, or
• is not in a position to know whether the allegation is true.

“Not admitting” an allegation is known as “putting a party to proof” (of the allegation). They are required to prove the allegation by formal evidence: in a witness statement.

Adverse Costs Orders

There is risk of adverse costs orders by putting a party to proof of an allegation of fact unnecessarily.

Not admitting allegations when they should be admitted escalates the costs of the other party unnecessarily.

It also has the consequence of wasting the Court's time. Which is a health risk.

And those costs may be ordered to be paid by the party by putting the other party to proof of the allegation.

 

Term: “as alleged or at all”

This phrase is used in statements of case to allege a denial of a particular allegation made in the statement of case of the opposing party. For instance, in a defence (which is a court document which responds to particulars of claim), the defendant denies that the matters alleged are specially denied (1) in the manner stated by the claimant in the particulars of claim, and (2) any other way that is not specifically pleaded by claimant in the particulars of claim.

The phrase “as alleged or at all” may be translated to “in the way the [party] states, or in any other way”.

For example, the relevant particulars of claim may state:

1. …
2. The defendant reproduced the copyright work of the claimant in the magazine.
3. …

The defence might respond as follows:

1. …
2. The defendant denies reproducing the work of the claimant in the magazine as alleged or at all.
3. …

Term: “Further or in the alternative”

Further or in the alternative is used in court documents to allege alternative factual situations.

The alternatives may be:

• in addition to those allegations previously pleaded in the particular statement of case (the further), or
• alternatives to the allegations preceding the particular allegation already made in the statement of case (the alternative).

“Further or in the alternative” may be translated to “In addition to the foregoing allegations or in substitution to the foregoing …”.

Structuring a statement of case by using the phrase allows a party to assert allegations which:

• may be cumulative with the previous allegations, or
• if those previous allegations do not succeed on the evidence (upon the court making a contrary finding of fact at the trial) to rely on those facts independently of the foregoing allegations.

The party may succeed on both the foregoing allegations and the subsequent allegations, or one of either.

A Court may also find that none of the allegations succeed on the evidence.

Example: Further and in the alternative

The Particulars of claim might state:

1. …
2. The Defendant copied the work of the Claimant without the licence of the Claimant and thereby infringed the copyright.
3. Further and in the alternative, the defendant used the work as a trade mark in the course of trade and thereby infringed the trade mark of the Claimant.
4. …

In this way, the claimant alleges copyright infringement, and further or in the alternative, infringed the trade mark rights of the claimant.

Term: “In the premises”

“In the premises” is used in statements of case to consolidate the effect a series of factual allegations made previously in the statement of case.

It is designed to justify a factual conclusion in the same document, such as:

• the defendant is liable for the reasons stated above in particulars of claim, or
• the defendant is not liable for the reasons stated above in a defence.

Use of the phrase relies upon the particular factual allegations appearing expressly in the document.

“In the premises” can also be used in reliance of the contents of documents or oral statements. The detail of the documents or statements should be specifically set out, including clauses or passages depending on the nature of the document.

Translation: “in the abovementioned circumstances”.

 

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