CPP 1- Part A

2019/2020

NOTES ON DRAFTING COURT DOCUMENTS

Drafting pleadings (statement of case) and other Court documents is an

important skill. It is an important skill that every attorney-at-law should
possess and work on improving in their life as an attorney-at-law
because if the Court documents filed in Court are not properly drafted,
it is very unlikely that the advocacy component of the hearing or trial
will be successful.

At a trial a party cannot rely on what was not pleaded/stated in their

statement of case unless the Court allows it or the other party agree to
same, which is highly unlikely at a trial that is contentious.

It is therefore important that as an attorney-at-law you know what to

draft and how to do so properly. PRACTICING TO DRAFT however is

the only sure method to develop the skill of drafting.

Some statement of case/pleadings that every attorney-at-law should

know and practice drafting include, but are not limited, to the

following:

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(i) Claim Form Claimant

(ii) Fixed Date Claim Form Claimant

(iii) Statement/Particulars of Claim Claimant

(iv) Affidavit in support of Fixed Date Claim Form Claimant

(v) Defence Defendant

(vi) Defence and Counterclaim Defendant

(vii) Reply Claimant

(viii) Reply and Defence to Counterclaim Claimant

(ix) Ancillary Claim Form Defendant

(x) Particulars of Ancillary Claim Form Defendant

(xi) Defence to Ancillary Claim Ancillary Defendant

(xii) Further and Better Particulars Any party

What is the purpose of drafting a good statement of case/pleadings?

Apart from to win your case, the purpose of a properly drafted

statement of case/pleadings are:

1. To inform the other side of the case they have to meet. They must
define and clarify the issue between the parties.

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2. To allow each party to know what evidence they need to prepare.

3. Defining the facts which are and are not in dispute.
4. Focusing on the real issues in the case to be determined by the
Court.
5. Tying the parties in advance to the case they have set out in the
statement of case/pleadings.
6. Show the strength or weakness of each party’s case and thereby
possibly encourage settlement.

Considerations when drafting Statement of Case/Pleadings

1. Precedents are not to be totally relied on. They are merely

guides to drafting.

‘All Precedent are for the guidance of wise men and women and,
are for the obedience of fools’ - Pleadings Without Tears: A Guide
to Legal Drafting under the Civil Procedure Rules, Williams Rose
and Roger Eastman.

2. Presentation is key. A STRONG draft of a claimant’s Court

documents is one that not only clearly set out the position of the
party submitting it to the Court but one that presents well. The

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presentation in the Court document is key to first gaining the

attention of the reader. The draft must therefore be properly
formatted, grammar and spelling must be good. The CPR sets out
what the margin size on each court document should be – See
CPR 3.6.

3. Familiarize yourself with the facts of the case. You have to

plead/state material facts to support your cause of action or
defence, as the case may be and therefore you must know what
the facts of the case are. Pleading incorrect or unnecessary facts
can cause a party’s to lose its case.

Material facts are those that are necessary to establish the cause
of action or the defence. Set out the facts and allegations which if
proved will entitle the Claimant or Defendant to the relief that is
sought.

Do not start using a precedent to help you draft until you have
mastered all the facts of your case known to you. Use the
precedent to help you plead your material facts but do not rely on
the precedent as your facts because each case is different. The
facts in the precedent most likely is different in one or more
respects from the facts of your case. Use only your facts to draft
and the precedent to help you, if it can.

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Be careful not to include from your precedent a legal or factual

allegation that does not fit your facts or to leave out a vital legal
or factual allegation because it is not in the precedent you are
using to assist you draft.

4. Identify from the facts the appropriate causes of action or

defence as the case may be. One set of facts can have several
causes of action and the CPR allows you to plead all the causes of
action arising out of the same facts in the same Claim Form (this is
called joinder of causes of action). Be careful to ensure that your
facts can support all the causes of action you plead. Also note
that pleading/stating too many causes of actions in your claim
form can lead to confusion making the case unnecessarily
complex. The same is true when drafting a defence.

5. Do not plead law. Only material facts are to be pleaded and not
the law. For example, in a negligence claim the cause of action is
negligence. The elements that must be established are that (i)
there was a duty owed, (ii) the defendant breached the duty, and
(iii) the result of the breach of duty was that the Claimant suffered
loss. The claim must also show what the nature and extent of the
loss was. However, because you cannot plead law you must use
the material facts to establish the duty owed, the breach that

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occurred and the loss or damage suffered as a result of the breach

of duty.

In a negligence claim DO NOT plead in your statement/particulars

of claim that the “The Defendant owed a duty of care and
breached it”. This is pleading the law of negligence.

Rather you should plead “The accident was caused by the

negligence of the Defendant in his operation of his motor
vehicle.” Here you would have sufficiently identified the cause of
action as required by the CPR. The trial is the place where the
attorney-at-law will have the opportunity to argue what the law
of negligence is.

6. Do not plead evidence. There is a difference between material

facts supporting a cause of action and evidence. The distinction
between pleading material facts and pleading evidence is subtle
but you must learn to make that distinction when drafting. An
example of the difference between the two are as follows:

(A) Pleading material/relevant facts – Personal Injury Claim

The Claimant has suffered personal injury, damages and loss as a
result of the Defendant’s negligence.

(B) Pleading Evidence – Personal injury Claim

The Claimant can no longer play tennis and piano as a result of his
injuries caused by the Defendant’s negligence.

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N.B. Note however that if your statement of case takes the form
of an affidavit (which is sworn evidence), as is required for an
Fixed Date Claim, then in drafting same you will be including
evidence.

7. Your draft statement/particulars of claim and defence must be

in numbered paragraphs. This is because each paragraph with
allegations in a statement/particulars of claim must be answered
by a Defendant in his defence as required by the CPR. The
defence must also be drafted in numbered paragraphs for the
Claimant to answer each paragraph in a Reply.

8. Check and recheck your draft document. You must read your
draft document several times before submitting same.

It is highly recommended that your first draft of any court

document you prepare be re-read a day or two after you first pre-
pared it. You will pick up errors more easily then with fresh eyes.
This means you should avoid drafting your document at the last
minute before it is due for submission.

How are precedents useful?

Precedents can be useful in that they may:
1. Show in outline what elements should be included in a particular
document, e.g. Statement/Particulars of Claim or Defence.

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2. Show an order for how each of the various material facts that
make up the elements of a cause of action or defence can be
pleaded, including how headings are placed or included in a
particular draft.
3. Suggest a way to word the paragraph of specific material facts to
support the types of causes of action or defences pleaded.
4. Help to save time in producing a draft. However, this can cost you
greatly if you use the precedent slavishly. Remember precedents
are only a guide. Copy and pasting a precedent without being
careful to edit properly can be dangerous. For person just learning
to draft it is recommended that you draft from scratch even if you
are using a precedent to assist you. This will help you develop
your skill of drafting and your own drafting style.
5. Gives the drafter some confidence that their draft is appropriate
and in order with other court documents being prepared by other
attorneys-at-law. Note however that precedent even from a
perceived good source can be wrong and so when you are a new
drafter you should check other sources, e.g. noted authors on
drafting, to see if the precedent reflects the learning on drafting
that type of document.