LEGAL PRACTICE COURSE

Civil Litigation
Workshop 6

Topic(s):
 The defence

Skills:
 Drafting

Learning Outcomes:
By the end of this session you will be able to:
 Explain a defendant’s options for responding to a claim
 Explain and apply the rules involved in drafting a defence to a claim in contract
 Produce a defence which complies with the CPR and protects the client's interests

Session Activities:
 Drafting sections of a defence
 Giving and receiving feedback and reviewing drafts

Materials Attached:
 Notes on drafting a defence
 Lorco Machines case file
 Task on Defendant’s options

Materials to be Provided In-Session:

 Table for analysis of particulars of claim and defence planning (d2)

Materials to be Released Post-Session

 Exemplar defence (d3)
 Answers to Task 2 (d4)

Preparation for Session:

 Reading: CPR 16.5 and PD 16 10-13
Chapter 7.3 Civil Litigation manual
 Task 1: Read drafting defence notes, memorandum and particulars of claim. Task 2: read
defendant’s options task and answer all questions
 Review your notes from LG 4

Post-Session:
 Complete the drafting of the defence and then compare with defence (d3)
 Check your answers to defendant’s options task against (d4)

[Link] 1/15 © City, University of London 2022

© City, University of London 2022 2/15 [Link]
 LEGAL PRACTICE COURSE

Task 1
Notes on drafting a defence

1. Essence of a defence

To respond to C’s case by giving D’s story

 Putting D’s case; and
 Giving D’s version of the facts

The purpose of the defence is not merely to respond to the points raised in the particulars of
claim, but also to deal with matters in your instructions which state D’s case.

A defence which deals point by point with the allegations set out in the claim but neglects to
raise matters which are highly relevant to the defence is incomplete. C will be unaware of the
strength of your case, you will be in breach of the rules and failure to set out matters fully may
weaken your client’s defence.

2. The fundamental rule

See CPR 16.5 - sets out the permitted responses in a defence.

In essence, they are: admit it, deny it or prove it.

3. Structure of a defence

Analyse the particulars of claim and then structure the defence.

3.1 Tort

Remember what has to be shown to bring a claim in negligence.

(a) D owes C a duty (will usually be inferred from facts)

(b) D has breached the duty

(c) C has suffered loss and damage

(d) That loss was caused by D’s negligence

(e) Loss of a recoverable kind, i.e. not pure economic loss

(f) Loss not too remote, i.e. reasonably foreseeable both in nature and causation

(g) Not statute barred

(h) C has not been contributorily negligent

(i) C has not failed to mitigate

[Link] 3/15 © City, University of London 2022

 LEGAL PRACTICE COURSE

Therefore, the defence to a claim in negligence must

 raise any specific defence, e.g. limitation

 deal with C’s description of the negligence
 raise further facts about the alleged negligence
 deny breach of duty and causation (with reasons)
 allege what D says caused the damage/loss
 allege C’s negligence or contributory negligence
 require C to prove the alleged loss and damage
 allege remoteness and/or failure to mitigate (if applicable)

3.2. Contract

(a) This involves:

1. a promise
2. consideration
3. an intention to create legal relations

(b) The contract was between C and D

(c) The contract contained the obligation which D is alleged to have breached

(d) C has performed any obligation which was a precondition to the performance of D's
obligation

(e) D was in breach of his obligation

(f) C has suffered loss and damage

(g) The loss and damage was caused by D's breach of contract

(h) The loss is of a recoverable kind (e.g. damages for distress are generally not recoverable)

(i) The loss is not too remote i.e. it was reasonably within the contemplation of the parties at
the time they entered into the contract as a likely consequence of the breach, in the light of
their knowledge at the time

(j) There is no term in the contract which prevents or restricts liability or the recoverability of
damages

(k) The claim is not statute barred

(l) C has not failed reasonably to mitigate his loss

Therefore, the defence to a claim in contract

must
 raise any specific defence, e.g. limitation
 deal with C’s description of the contract and its terms
 allege any further terms on which D relies

© City, University of London 2022 4/15 [Link]

 LEGAL PRACTICE COURSE

 deny breach (with reasons)

 raise any specific defence (e.g. limitation or reliance on an exclusion clause)
 allege if C in breach of contract
 allege remoteness i.e. not within the contemplation of the parties and/or failure to mitigate
(if applicable)
 deal with C’s allegations of loss
 deny (or require to prove) causation

4. Structure your defence

Anything that constitutes a total or partial defence is something which, in effect, knocks out
one or more of the essential ingredients of C's claim. D only has to knock out one of them
and, as a matter of law, C's case cannot fully succeed.

Look for the paragraph in the particulars of claim which seeks to establish that ingredient and
note the point of the defence that must be set out in relation to it.

From your analysis of the particulars, set out the position in tabular form which will provide a
structure for your defence.

Take each stage in turn and each paragraph of the particulars of claim and then decide exactly
what you are going to say in response to C's case and whether there are any new facts or
matters which need to be set out. For each and every allegation you must admit, deny or
require proof.

D is presumed to admit anything he fails to deal with, so be careful. What is admitted or

denied comes from your instructions and you cannot make anything up. You must admit any
facts which are correct, even if this weakens your case. You should not deny a fact when you
can produce no evidence to counter it.

For example, your analysis may take the following form:

STAGE PARTICULARS OF CLAIM DEFENCE

1. Parties Para 1 Parties Para 1 ADMIT
2. Contract Para 2 Contract Para 2 ADMIT
CONTRACT/DENY
DETAIL
3. Terms Para 3 Express term Para 3 DENY AND EXPLAIN
Para 4 Implied term Para 4 ADMIT
4. Story Para 5 Delivered/Installed Para 5 ADMIT/PROVE
5. Breach Para 6 Breach of express and Para 6 DENY AND GIVE
implied terms REASONS
6. Damage Para 7 Loss and damage Para 7 Deal with loss and
damage.
DENY/PROVE/EXPLAIN
Para 8 MITIGATE
7. Interest Para 8 Interest N/A N/A
8. Remedies Para 9 Remedies N/A N/A

[Link] 5/15 © City, University of London 2022

 LEGAL PRACTICE COURSE

5. Drafting the defence

Reference to paragraph numbers

It is a sensible to draft each paragraph of the defence so that it is clear and obvious which
paragraph of the particulars is being responded to.

Setting out D's case

You are responding to C's claim AND putting D's case. This will mean you are stating new
facts either as an ALTERNATIVE or in ADDITION to the facts set out in the claim. There are
various ways of doing this. Take one issue at a time.

Either, you can either deal with C's case and then set out D's
alternative.

The Defendant denies paragraph 2. On 25 May the Defendant …

Or you can set out D's case and then deal with C's version.
Set out the facts as D would have them and then say; Otherwise, the Defendant denies
paragraph 2.

Remember that a bare denial is not allowed under CPR and reasons for the denial and/or D’s
version of the facts must be given.

If you are stating facts which are only PARTLY alternatives to those alleged by C, you will
need to admit part and deny part of what C has alleged. You can either use the second
approach above,

Or you can say

'Except that the Defendant denies that [specific point you are denying] paragraph 2 is
admitted'.

Or
'Except that the Defendant admits that [specific point you are admitting] and the
Defendant requires the Claimant to prove that … paragraph 2 is denied'.

If you have new facts, then you can set them out as you would in the particulars of claim. If it
is consistent with what has gone before you would use FURTHER and, if it is not, then begin
with ALTERNATIVELY.

NOTE
Sometimes, you need to establish a defence which you will only need to rely on if C succeeds
in establishing something you have denied. It looks contradictory to say in one paragraph that
D was not in breach of contract and in the next that the breach did not cause the loss.

The way round this is to say

If, which the Defendant denies …

This is known as pleading in the alternative.

Finally, you may dispute C's right to claim interest but you cannot dispute that he is claiming it.
Similarly, the list of remedies is simply C's claim and requires no response.

© City, University of London 2022 6/15 [Link]

GREY & PARTNERS
MEMORANDUM
From: Partner
To: Trainee
Client: Lorco Machines plc
Matter: Dispute with Speed Prints Ltd
Date: 17 October 2022

We act for Lorco Machines PLC, which imports and sells printers. It has been served with a
claim and the Particulars of Claim are attached to this memo. The Claimant is Speed Prints
Limited; printers and binders.

I have met with the Managing Director of Lorco Machines and his comments on the Particulars
of Claim are as follows:

Para 1
The information in this paragraph is correct.

Para 2
The contract between the client and Speed Prints was evidenced by two e-mails (as referred
to in the Particulars of Claim) and a telephone call on at 2.30pm on 13 January 2022 between
Catherine Patterson at Lorco and Adam Wallace, who works for the Claimant.

The dates and times of the e-mails detailed in the Particulars of Claim are correct, as is the
number of printers ordered, the price agreed and the date of payment. I also attach an earlier
e-mail between the client and Speed Prints.

Para 3
The Claimant has failed to mention the telephone call between the companies. During the
telephone conversation on 14 January, Catherine Patterson told Adam Wallace that there was
a typographical error in the e-mail sent by Lorco to Speed Prints earlier that day. The e-mail
stated that the printers were capable of printing at a rate of 250 sheets per minute whereas in
fact it should have stated that the printers were capable of printing 150 sheets per minute
when using Lorco Superspeed Ink.

Para 4
This is agreed.

Para 5
The machines were delivered on 24 February 2022 as specified in the Particulars of Claim.
However, Lorco does not know whether the new machines were used to replace old machines
and whether those old machines were scrapped.

Para 6
Lorco refutes the allegation that the printers could only print at a rate of 120 sheets per minute.
If the machines had been using Lorco Superspeed Ink, they would have printed at a rate of
150 sheets per minute.

[Link] 7/15 © City, University of London 2022

Para 7
Lorco disputes the loss claimed and says that any loss which was suffered is a result of the
Claimant’s failure to use Lorco Superspeed Ink.

Para 8
Lorco that if the Claimant wanted printers that printed 250 sheets per minute, it should have
purchased different printers.

I want us to discuss the draft Defence in a couple of days’ time. In the meantime, please
familiarise yourself with the facts of the case.

Please also read CPR Part 16.

© City, University of London 2022 8/15 [Link]

E-mail

From adamw@[Link]
To sales@[Link]

12 January 2022 10:15

Subject: printers

Hi guys,

We’ve had some discussions recently about buying new printers and you or Zennon are the
best fit for us. Pete Huntley has offered us 3 Zennon 512 for £34,000 a piece.

Can you guys do better for us?! We really like your stuff, but price is a biggy at this moment in
time!

Cheers

Adam
Adam Wallace

Sourcing Executive
Speed Prints Ltd

[Link] 9/15 © City, University of London 2022

IN THE HIGH COURT OF JUSTICE Claim No. 2022 HC 1427
QUEEN’S BENCH DIVISION

BETWEEN

SPEED PRINTS LIMITED

Claimant

and

LORCO MACHINES PLC

Defendant

PARTICULARS OF CLAIM

1. The Claimant is and was at all material times a company carrying on business as
printers and binders. The Defendant at all material times carried on business as
importers and sellers of printing machines.

2. By a contract contained in e-mails passing between the Claimant and the Defendant
on 13/01/2022 and 14/01/2022, the Defendant in the course of its business agreed to
import and sell to the Claimant and the Claimant agreed to buy from the Defendant 3
Lorco Series 2XM printing machines at a price of £30,500 each. The e-mails referred
to, (copies of which are attached), are:

(1) E Mail from Defendant to Claimant on 13 January 2022, time 11.30 a.m.
(2) E Mail from Claimant to Defendant on 14 January 2022, time 4.25 p.m.

The Claimant duly paid the Defendant £91,500 pursuant to the contract on 11/02/2022.

3. The contract included an express term that the printing machines should be capable
of printing at a rate of 250 sheets per minute using A4 size 80 gsm paper.

4. The contract included an implied term that the printing machines should be of
satisfactory quality.

5. Pursuant to the contract, on 24/02/2022 the Defendant delivered to the Claimant

three printing machines, serial numbers 100785-7 (‘the new machines’), and the
Claimant installed the new machines in replacement of 3 of their existing printing
machines which they scrapped.

6. In breach of the express and/or the implied term set out above, none of the new
machines was capable of printing at a rate exceeding 120 sheets per minute.

7. As a result of the matters set out above, the Claimant has suffered loss and damage.

[Link] 10/15 © City, University of London 2022

 PARTICULARS OF LOSS

Loss of Profit

(a) From March 2022 until 01/10/2022:

(i) Estimated receipts from warranted output £96,000

(ii) Actual receipts £42,000

£54,000

(b) Continuing from 01/10/2022 at the following annual rate:

(i) Estimated receipts from warranted output £128,000

(ii) Estimated actual receipts £48,000

£80,000

8. Further the Claimant claims interest pursuant to section 35A Senior Courts Act 1981
on the amount found to be due to the Claimant at such rate and for such period as the
Court thinks fit.

AND the Claimant claims:

(1) Damages

(2) Interest pursuant to section 35A Senior Courts Act 1981 to be assessed.

STATEMENT OF TRUTH

I believe that the facts stated in these particulars of claim are true. I understand that
proceedings for contempt of court may be brought against anyone who makes, or causes to be
made, a false statement in a document verified by a statement of truth without an honest belief
in its truth.

Rufus Tremain
Director of Claimant

Filed and served 13/10/2022

The Claimant’s solicitors, to whom documents should be sent, are:

Doyle & Partners
154 Fleet Street
London
EC4A 5LK

Ref: KD/SC2007/13

[Link] 12/15 © City, University of London 2022

E-mail

From sales@[Link]
To adamw@[Link]

13 January 2022 11:30

Subject: Lorco printers quote

Dear Adam

We can do you 3 Lorco Series 2XM printers for £30,500 each, with the usual warranty
provisions. As this is a special deal for you guys, I can only do this price for 1 week.

Delivery – within 6 weeks to your UK address.

Payment – in full before delivery.
Functionality - print rate of 250 sheets per minute when using Lorco Superspeed Ink.

Hope we can make a deal!

Cathy 

Catherine Patterson
Sales Executive
Lorco

[Link] 13/15 © City, University of London 2022

 E-mail

From adamw@[Link]
To sales@[Link]

14 January 2022 16:25

Lorco series 2 printers

Hi Cathy

Awesome!
That’s a quick response! Looks a good deal to me and pretty much what we’re after.

I’ll send you the full delivery address and raise the purchase requisition for payment in
February or early March.

Nice doing business with you!

Adam
Adam Wallace

Sourcing Executive
Speed Prints Ltd

[Link] 14/15 © City, University of London 2022

 LEGAL PRACTICE COURSE

Task 2

Defendant’s options

A defendant who is served with particulars of claim has a variety of options by way of
response. The response will depend upon the facts of the case and not all of the options set
out in the CPR are appropriate for every claim.

As part of your preparation ahead of session, look up the CPR Part or Rule in questions 1 to
10 below and briefly note down the option it provides. You may do this exercise with another
member/s of your group.

Note: Some of these options may be combined with another option, whilst some of them
must be combined with another option to avoid the claimant obtaining judgment in default
under CPR Part 12. Some of them are procedural; some of them are tactical.

1. Part 16 & PD

2. Part 14

3. Part 10

4. Part 11

5. Part 20

6. Part 24

7. Part 18

8. Rule 3.1

9. Rule 3.4

10. Part 36