Account of drafting.

Account of drafting

(As defined by Sime, statements of a case are formal documents used in litigations to express what each party say about the case. They include such things as claim forms, counter claims and sometimes particulars of claim where the document is not included in a claim form. With a need of starting a civil proceeding aiming at claiming for the loss suffered by our client Ungar as a consequence of the breach of contract by Maddisons Ltd, our group had to fill in an ‘’N1 claim form’’. The use of an N1 claim form was imperative due to the following reasons which are highly inclined on the purpose of such forms: First, the claim form acts as an informer to the other party on the allegations and claims against it. Secondly, since it is targeted to both, the Defendant and the court, the claim form also provides the judge with a concise statement of all the issues and claims, so as to give him or her a good insight of the case which will facilitate good decision making and somewhat improving the efficiency of the judiciary.

Based on our research on legal drafting facilitated by directive readings, we decided to adopt a style which is formal for the above stressed purposes of the claim form. This was made possible by ensuring we had a good structure which will have a positive effect to our style. We organised our form into a coherent order, by putting issues into a logical sequence epitomised by the division of issues into appropriate categories. Apart from putting issues into separate categories, another style that we adopted so as to avoid poor drafting was, putting numbered paragraphs, and subsections, which will enable us to have a good coverage of our claims and allegation without missing any. We avoided using short sentences because they can be difficult to be understood by the Defendant and the judge, and consequently hindering the success of the above mentioned form’s objectives. On the other-hand we neither used paragraphs in an essay form because essays require linkages between paragraphs, and that could be irrelevant in our form since each paragraph was independent, stressing its own allegation and claim.

In the content of our form we gave preference to facts in raising different allegations and claims. We predominantly relied on the relevant facts, rather than law, or arguments which could serve best in a trial because, as argued by Cunningham, p. 196, a claim form should not be treated as a substitute of oral arguments in court. In the light of content we also put ‘a statement of the nature of our claim as urged by Sime, p 187. This was done in BRIEF DETAILS OF CLAIM (BDC), where we highlighted the nature of our claim and damages sought. Moreover in Particulars of claim, we expanded the details of our claims by supporting them with factual evidences. One issue that we encountered was whether we should have included the allegations on the unfairness of clauses. We decided to omit them because O’Hare, p. 253 provides that, there is no need to include such details because by doing so, we would be anticipating a counterclaim or a defence, which will weaken our winning prospects. Invalidating the clauses, will be a task to be conducted when we receive the counter claim/defence from the Defendant.

With a strong motive of being precise, we decided to put only those allegations we could support with facts. This was done so as to avoid a bulky of unparticularised and unfocused allegation which could lead to striking out of our case as happened in Dunn v Glass Systems (UK) Ltd (2007) LTL 23/7/07. In addition, because the claim was for a breach of a written contract, by virtue of PD 16, para 7.3 our group decided to attach the ‘written contract’ dated 25/02/2009. Attaching the contract could also help the judge to refer on the relevant express obligations which are claimed to have been breached by the Defendant, as well as all the implied provisions. The solicitor signed the form by virtue of PD, para 2.1 and verified the statement of truth by virtue of CPR, r 22 1 (1) (a).

Dealing with figures and their representation in the form was our major point of concern. In the value section, our group decided to write all the damages we sought, in short sentences alongside the actual or approximate value we are claiming so as to enable the judge to know what we were claiming for. However we drew a cautious line between values for ‘pecuniary’ and none ‘pecuniary losses’ (loss of enjoyment) because, unlike pecuniary losses, the award for none pecuniary losses, is largely under court’s discretion, that is, court will generally offer the value it sees fit. Since we claimed for non-pecuniary losses, our group could not come up with a ‘specified value’, and consequently in claiming for interest we had to claim for it, pursuant to s.69 of the County Courts Act 1984, but on the rate and period the court sees fit.

Furthermore, much focus during the process of drafting was kept in the use of legal language. As future lawyers, we also believe that language is the only medium which stimulates the functioning of any legal system, or on the other- hand, accomplishment of any purpose of a legal document. With all this in mind, our group made sure that we used clear, correct and concise English. This Maughan & Webb’s three C’s model of legal language can be reflected in our work as follows; First, as urged by Maughan, p. 37, in our form we made sure that we used frequently used words (plain English). Moreover, we also used passive voice in making allegations so as to capture the judge’s attention. However, despite using plain English we avoided the use of short vague sentences and lay man’s language. We instead used comprehensible, doctrinal legal language with such legal words as ‘pursuant’.
We believe that we safeguarded our claim because we put much emphasis on meeting the paramount rules of good legal writing provided by Orwell: For example, our structure was good since it was in a coherent manner which followed logical sequence of events in chronological order. Secondly, we adopted a ‘measured tone’ in the light of passive voices, which in turn will capture judge’s attention and also clear his objections.

With the passage of time and more drafting practices, we believe we will develop the key tools for a god legal drafting, such as language, style, and structure.






NOTES
Claim form and defence/counterclaim
The relevant documents should:
1. Demonstrate a basic understanding of the administrative steps necessary to commence a claim or to defend and counterclaim in the English Civil courts
2. Demonstrate a basic level of competence at completing formal legal forms
3. Demonstrate an ability to identify the relevant factual basis of a claim or defence/counterclaim
4. Demonstrate a basic ability to draft particulars of claim/defence
5. Demonstrate a basic appreciation of the drafting considerations which relate to the claim for specified and unspecified sums of money
6. Demonstrate a basic understanding of the right to claim interest in English civil procedure

Account of drafting
Account of drafting should:
1. Reflect both academic/legal issues and issues relating to law in practice and lawyers and language you have come across
2. Demonstrate an appreciation of the role of specific legal documents in the broader process in the English civil justice system
3. Demonstrate an appreciation of the significance of good legal drafting when commencing or defending proceedings
4. Demonstrate an appreciation of some arguments relating to language and the structure and style of written documents
5. Demonstrate an understanding of broader debates surrounding legal communication and drafting