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The drafting question in the civil litigation assessment for the LPC
I am not a LPC tutor. I am writing this blogpost as a matter of goodwill for students doing the Legal Practice Course. Current students should at all times be guided by their current SGS supervisors and examiners. This blogpost is only to provide a very basic introduction; and of course answers should be completely tailored to the question (not all items below will apply in any one question). For the civil litigation question, the key document will either be the particulars of claim (most likely), defence (much less likely but possible), or witness statement (much less likely but possible).
Particulars of claim
Students are usually told to assume that matters had progressed and A had started legal proceedings against B in the High Court. Students were then provided with draft Particulars of claim and were ask to identify and amend any errors in the draft document. This question requires students to identify any errors in the draft particulars of claim provided and to draft any paragraphs (or parts of paragraphs) that students considered were missing. A few students, apparently, also only identify the errors and missing elements of the particulars of claim and comment on them but do not draft the corrections. The instructions required students to identify any errors in the particulars of claim AND to draft any paragraphs (or parts of paragraphs) they considered were missing.
For students to gain high marks in this question they needed to:
- correct all typos and incorrect information;
- identify the missing elements in the particulars of claim and draft these elements; and
- correct and draft appropriate parts of the format of the document.
Some students answer this question well, but many finf this question challenging (a euphemism for saying sometimes the marks for this question are overall). In critiquing the particulars of claim, a methodical approach should be adopted to ensure it contains all the correct formal parts, all typographical or factual errors are corrected and the elements of duty, breach, causation and loss are dealt with.
There are some very good answers to this question by students who adopt a methodical approach to ensure that all the elements of the claim were dealt with.
Most students pick up marks by identifying some mistakes and missing formal parts in the document which might include some of the following, for example:
- description of claimant incorrectly as “claimants” when it was a company;
- description of defendant incorrectly as “defendants” when it was a company;
- formatting errors in the heading;
- general denial of relief paragraph was missing;
- in relation to the interest / damages paragraphs contained within the summary of remedies section, the cross reference to the relevant paragraph within the body of the draft particulars of claim was wrong;
- including a further implied term (e.g. fit for purpose);
- including an interest paragraph;
- incomplete description of the parties;
- incomplete list under Particulars of Breach;
- incomplete Prayer;
- incomplete Statement of Truth on the basis that it had been drafted by the solicitors;
- incorrect amounts;
- incorrect court (High Court of Justice);
- incorrect date references;
- incorrect interest paragraph;
- incorrect loss figures;
- incorrect name of the claimant;
- incorrect name of the defendant;
- incorrect title of the document;
- incorrectly shortened prayer paragraph;
- name of the firm was missing;
- neither party’s role was referred to as the first paragraph of the document as it should have been so this needed to be drafted in and the subsequent paragraphs re-numbered;
- no claim for the loss of reputation which had been suffered (if applicable);
- no proper causation – i.e. no linkage wording of the breach to the loss;
- no reference to the breach for either the express or the implied term;
- no reference to the express and implied term (e.g. fit for purpose);
- no reference to the express oral term;
- no reference to the relevant division of the High Court of Justice – i.e. the Queen’s Bench division;
- non use of a defined term for the word “Customers” which consistently was used with a capital letter throughout the document;
- not attaching the contract which is required by the CPR;
- reference to the first names but not the last names of the people acting on behalf of the claimant and defendant;
- stated that interest would be awarded ‘at such rate and for such period as the court thinks fit’;
- the authorisation by the claimant company was omitted from the statement of truth and the statement and should have concluded ‘I am duly authorised by the Claimant to sign this statement’;
- the defendant’s role was not referred to in the beginning of the document as it should have been;
- the interest paragraph referred to the wrong statute (the County Court Act which would only have been correct if the case had been in the County Court); it should have referred to section 35A Senior Courts Act 1981;
- the statement of truth needed an authorisation statement as the claimant was a company;
- the statement of truth should not have been on a page by itself;
- the summary of remedies or relief prayer should be in the claimant’s name and not the defendant’s and in relation to the interest paragraph contained within this section, the cross reference to the relevant paragraph within the body of the draft particulars of claim was omitted; and
- the wording “at such a rate and for such a period as the Court thinks fit” was omitted from the general interest paragraph;
The majority of the available marks are, however, available for correcting content errors and many students do well in this area by identifying that the duty was correctly set out, the breach was set out and correctly particularised and linked by causation to the losses suffered.
The errors normally include some of the following, for example:
- a copy of the contract has been omitted from the draft particulars of claim;
- a line needed to be added to show the causal link between the breach and the damage: i.e. ‘As a result of the breach of the…’;
- a new paragraph should have been inserted to deal with a further consequence of the defendant’s breach, the claimant’s loss to its reputation;
- a new paragraph should have been inserted to et out the implied term of the contract that the shower heads supplied would be fit for purpose and of satisfactory quality;
- a new paragraph should have been inserted to deal with the fact that as a further consequence of the defendant’s breach, the claimant was claiming damages for loss of reputation;
- failing to draft the interest paragraph or statement of truth properly;
- failing to link the breach back to the duty/term;
- the estimated loss of profit has been omitted as a head of damage and should be included with a revised total to the calculation inserted, as a result;
- the wording “and damage” has been omitted from the end of the first sentence;
- it was also necessary to clarify the breaches of the other terms of the contract (i.e. other express terms and the implied term) and link them back to the relevant paragraphs;
- it was necessary to add in a new paragraph to state that the defendant was in breach of the express term of the contract;
- it was necessary to state a term referred to was an express oral term of the contract;
- omitting the express oral term;
- omitting the implied term or including an incorrect implied term
- reference ithat the term of the contract was an express term;
- the particulars of loss and damage did not include an amount for the cost of a component and this needed to be added in and a new total loss amount calculated; and
- there were further particulars of the breaches which were not stated and should have been.
Common student errors or weaknesses in the drafting answers are:
- a copy of the contract has been omitted from the draft particulars of claim;
- a new paragraph should have been inserted that set out the implied term of the contract that the defendant would carry out its services with reasonable care and skill;
- a new paragraph should have been inserted to deal with a further consequence of the defendant’s breach, the claimant was claiming damages for future profits;
- a new paragraph should have been inserted to state, for example, the several customers had confirmed to the claimant that they would not be placing further orders with the claimant in the future (reasonable anticipated consequential loss);
- Inserting the names and addresses (including the company number) of the claimant and defendant – this information is provided on the Claim Form;
- it was necessary to add in a few words to state that the defendant was in breach of both the express and implied terms of the contract linking them to the relevant paragraphs above;
- not pleading the implied term of fitness for purpose and satisfactory quality or pleading a different implied term such as reasonable skill and care;
- not redrafting the statement of truth;
- not spotting that there had also been a breach of the implied terms of the contract (in addition to the breach of the express terms);
- only identifying some of the errors in the formal parts of the particulars of claim such as only considering the heading but not considering the end of the document and the statement of truth;
- pleading in a narrative style, which is more appropriate in a witness statement than a statement of case;
- removing key parts of the document when it was unnecessary to do so; and
- there were further particulars of the breaches which were not stated and should have been.
Students were asked to assume that a letter of claim was sent to A, and A responded indicating that it intends to defend the claim and that it accepts that the High Court in London has jurisdiction over the dispute. Further, students were told to assume that: a claim form was issued and deemed served together with the particulars of claim on a particular date; the relevant pre-action protocol was complied with and this has been stated on the claim form. Students are given a copy of the particulars of claim served by B. Students are provided with a first draft of the defence and they were asked to identify any errors in the draft defence provided and to draft any paragraphs (or parts of paragraphs) that students considered were missing. This question required students to identify and correct any errors in the draft witness statement considered in the previous question by marking them on the draft witness statement. Common findings are otherwise as above.
In critiquing the witness statement, a methodical approach should have been adopted to ensure it contained all the correct formal parts, all typographical or factual errors were corrected and the necessary elements of a witness statement in support of a summary judgment application were included. There are some good answers to this question by students who dealt with all of the above. Common findings are otherwise as above.
Most students pick up good marks by identifying some mistakes and missing formal parts in the document including:
- no corner marking;
- the witness’s details and relationship with the claimant was not referred to in the first paragraph of the document as it should have been;
- ]the wording at the start (“make oath and say”) was not appropriate for a witness statement and should have been amended to “will say as follows”;
- the “information and belief paragraph” was missing and needed drafting in;
- the meetings log should have been exhibited (as this confirmed the meeting which took place between the parties at the relevant time) and referred to in the statement properly marked as FS1;
- a paragraph referring to the summary judgment test should have been included including a formal request in for the Honourable Court to grant the order;
- the statement of truth was in the wrong form for a witness statement i.e. needed to be in the first person and did not require authorisation by the claimant.
Good luck! The assessments in the electives differ from the core practice areas in that invariably all drafting is done from scratch (i.e. you are not asked to amend any documents; you’re given a completely blank of sheet of paper.)
Assessment on the Legal Practice Course (LPC)
Whenever I think of the phrase ‘fit-for-purpose’, I remember Rebecca Huxley-Binn’s advice ‘fit for whose purpose?’
So that’s how I’m going to approach this one. Running exams is an operational nightmare, and the mechanics of them always arouse emotions for all involved. The legal education providers would like ideally to award as many passes, commendations and distinctions as possible, and the students wish to do as well as they can. And the Solicitors Regulation Authority need evidence that trainees commencing training contracts have the necessary knowledge or know-how, behaviour and skills to succeed.
Ultimately how well a trainee performs is best assessed with a workplace assessment, and legal recruiters can take one of two approaches in selecting suitable candidates for training contracts. They can decide to seek out actively competences of a ‘good and proper trainee’, a pro-active approach, or they can select the least worst trainees, a reactive approach. The latter lends itself to a safe II.1 candidate, however bland he or she may be; and City firms, despite their gloatings about innovation, tend to be conservative with a large and/or small ‘c’. Bland is probably best in selecting trainees who are the safest and able to generate as many billable hours for the firm as possible. Intelligence is not required, and in fact may slow down productivity.
Assessment on the LPC has its primary goal safety of trainees and safety of their clients. The assessment procedures have to be consistent and reliable, and whatever method used, the learning objectives need to be matched to the assessment methods. That means in principle it doesn’t matter what mode of assessment is used, although I happen to feel that a piece of project work where a student can have access to real-life precedents in drafting makes more sense than an artificial scenario involving 10 marks in civil litigation, business or property. The College of Law has open book exams, as opposed to BPP where only permitted materials (mainly statutes) are allowed. The ethic of the exam serves two functions – as an exit from the course, and as an entry for completion of training to be admitted to the Roll of Solicitors by the Solicitors Regulation Authority.
I personally would like to see a time where electronic resources are allowed in the exam, but the advantage of the way in which exams are conducted presently is that students are most likely forced to look at material they otherwise would not bother looking at. Also, it depends on what you think the purpose of assessment actually is. Some people believe that assessment is a valid learning exercise itself, and the separation of assessment and learning is an artificial one. At best, it probably is at best a rough-and-ready tool, and should be, like with other components such as verbal reasoning test performance, used with caution by selectors. The best way students can prepare is through looking at the relative weightings of subjects in past papers, and making sure that they know everything reasonable well. After all, you wouldn’t wish to pay for a lawyer ‘who’d binned corporate insolvency’, would you?
Two 'Legal Recruit' books on online tests for law students, pub date 1 Nov 2011
It is important to note that, whilst ‘Legal Recruit’ is an important key initiative from the BPP Legal Awareness Society to encourage a business culture in law, ‘Legal Recruit’ is absolutely nothing to do with BPP media, nor indeed represents any official teaching or guidance from BPP.
Book 1 – Practical verbal reasoning questions for law students (111 pages)
This book has carefully designed verbal reasoning questions, of the ‘True’, ‘False’, or ‘Cannot Say’ variety. Two questions follow each of the passages together with full explanations, and reading passages cover a variety of subjects, including biology, business, economics, education, engineering, environment, geography, geology, health and safety, human relations, medicine, modern languages, physics, technology, and transport. Readers of this title will benefit from the general explanation as to how to do these tests, and from the worked examples, such that they feel much more comfortable when they come to do such tests for real for training contract or vacation placement applications. The book will also be also of interest for applicants to corporates who use these tests for recruitment purposes. This title has a publication date of 1 November 2011, and is only available to download for £7.50 from the Legal Recruit website.
Book 2 – Practical situational judgements questions for law students (77 pages)
This book has carefully-designed questions in six competences commonly assessed in situational judgement tests. Situational judgement tests are used by some law firms to ascertain the suitability of a law student for a training contract. These competences are problem solving, proactive attitude, commitment to excellence, communication and negotiation, teamwork, and attention-to-detail and leadership. The book will also be also of interest for applicants to corporates who use these tests for recruitment purposes. Getting focused on these competences will help law students to understand the relevance of these skills to recruitment and their general professional life. This title has a publication date of 1 November 2011, and is only available to download for £7.50 from the Legal Recruit website.