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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.)
About the BPP Legal Awareness Society
The BPP Legal Awareness Society was founded in January 2011 at BPP Business School, The City, London. The aim of the Society is to consider how key decisions are made in corporate strategy by corporate clients, and to consider further the importance of commercial and corporate lawyers in promoting business success.
Whilst currently based at BPP Law School in Holborn (as of January 2012), the Society continues to generate much goodwill and a good reputation across the whole of England, in part due to its very active efforts in the social media. The Society prides itself on inclusivity and accessibility, and is therefore open to all past, current, and future members of BPP, in all disciplines, across all sites.
How to contact the BPP Legal Awareness Society
To contact the Society over anything, please e-mail us at: legalaware1213@gmail. Alternatively, tweet Shibley, the Society’s current President, directly at @legalaware. We should be particularly keen if you would like to offer input into the ‘Corporate Client Strategy’ project, described below, if you, as a lawyer, are interested in how business strategy is taught at GDL/LLB(Hons) or LPC level to law students, or if you would like to take part as a guest in the podcasting project; you do not have to have trained or taught at BPP to be able to contribute.
The ‘Legal Aware’ flagship blog
Our blog contains up-to-date corporate and commercial news, as well as educational videos (http://legal-aware.org). You might find it useful in preparation for training contract interviews, inter alia.
The BPP Legal Awareness Society as in previous terms will be holding fortnightly meetings during term time at BPP Law School. For timetables of previous meetings which we have held please go to the following links: Jun – Dec 2011, Jan – May 2012, and May – August 2012. You will notice that our meetings consider in detail common practice areas of international commercial and corporate professional legal work, and also the online psychometric verbal reasoning tests used by the majority of City law firms in their selection process.
These provide information about how to get involved in activities of the Society:
This is a brand new initiative which we are launching for the 2012/3 academic year. The aim is for students who are current members of the Society to research in detail the corporate strategy of clients of their choice using only information in the public domain (these may be firms that they may be dealing with in their training contracts, for example). Then, these students give mini-presentations on their findings, suggesting how commercial and corporate law can be used innovatively to create competitive advantage for the corporate client, thus maximising shareholder dividend. We anticipate that students who are yet to secure a training contract may seek to be involved with this new project, as evidence of ‘commercial awareness’ for the training contract application form.
Blogging is an excellent mechanism of knowledge sharing, and creating networks of like-minded individuals. Our popular blog is read by people from a number of different backgrounds, including junior and senior lawyers, professionals in business, finance and economics, and current, past and future GDL/LPC/LLM students. The blog is currently updated virtually daily, and we are looking for a small team of writers to take responsibility for producing accurate, intelligent and thought-provoking articles based on the contemporary commercial and corporate news, for publication on the blog. All authors will be given their own admin credentials for the blog, and there will be minimal editorial input. All posts will necessarily conform to the current SRA Code of Conduct (LPC student edition).
The BPP Legal Awareness Society executive committee runs on the basis of the ‘cluster’ basis of management. These means that executive committee members tend to have defined roles, such as internal publicity across various sites, liaising with internal stakeholders, arranging meetings at Holborn, taking responsibility for podcasting (see below), but will participate in running the society according to demands of the Society within BPP. This allows flexibility according to our needs, and encourages teamwork amongst our team members. We will this year be asking students to prepare a short CV of their relevant background, education and/or experience, at the least, as we should wish all members of our committee to pull their weight and not to require prompting to do things.
In this academic year, we are especially keen to produce podcasts and widely distribute them. If this project is successful, we wish to make our Legal Aware podcasts available for free subscription on the internet through the iStore. The podcasts are produced by members of our podcast team, who research and discuss topics of their own choosing. This is our last podcast (from the last academic year) on the changing nature of legal education, in response to the ongoing ‘Legal Education and Training Review’. This initiative relies heavily on the competences of attention-to-detail, proactivity, commercial awareness and teamwork.
Verbal reasoning psychometric tests for training contract applications
The Society has also been involved in an initiative for law students to improve their performance in verbal reasoning psychometric tests for training contracts (“Legal Recruit”). This initiative is entirely separate from the teaching provided by BPP.
25 September 2012
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?
I am writing this post completely independently of BPP. As a current LPC student at BPP Law School in Holborn, I was very interested to read a recent article about a pilot of a new course to commence in September 2012, thought to be the first of its kind, called “MA (LPC with Business)”. The LPC of course has a formal name in itself ‘Postgraduate Diploma in Legal Practice’, so it makes complete sense to ‘top up’ LPC modules with further modules to constitute a degree-level course.
I think the critical thing about this new course is that it allows students to study both business and law concurrently. I am one of the few people in the UK to have done postgraduate qualifications in law (LLM) and business (MBA), though there are some very senior people who have done both. I therefore studied business and law separately, and it took me around three or four years in total, but I think a combined Masters for future trainee lawyers is a very good idea.
Most of the general public do not have a good understanding of what business is. The tragedy is most people on completing the GDL do not either, and even the exposure to management theory and practice is limited on the compulsory practice area ‘Business Law Practice’ on the Legal Practice Course. This is limiting, as I believe that corporate lawyers benefit from understanding the business motives of their clients. I don’t believe this is the same thing at all as necessitating a psychiatrist should have a history of severe depression, but I think it’s more similar to a cardiologist wishing to help a patient with his depression so that his heart symptoms get better. This analogy brings out a problem of this relationship – the patient does not probably wish to come to see a cardiologist about his depression, and would prefer to see a specialist psychiatrist anyway about his depression.
You learn things in business management which you simply do not learn in the business law practice course in the LPC. There are too many to list here in this brief personal opinion, but a clear example is how to draft up a business plan. Business students also learn in depth about organisations and culture, corporate strategy, operations, leadership, marketing, economics and (sometimes) innovation. More specifically, there are “learning outcomes” which are clearly beneficial in this context (see for example module 1 of the SJ Berwin “Masters in Law” with Business programme prospectus):
- assess the relevance of concepts of economic theory to the competitive context within which a business operates;
- apply techniques of business and market analysis;
- analyse the determinants of competitive advantage and the techniques for assessing strategic potential;
- examine a range of techniques used by commercial organisations as the basis for formulating a business strategy and creating a strategic plan for leaders in a business;
- consider the challenges presented in implementing a business strategy and achieving organisational alignment; and
- critically assess business practice in relation to risk management, corporate governance and corporate social responsibility.
Likewise, you can learn things in postgraduate legal studies which you don’t learn in business, like how to draft up commercial legal agreements, the details of intellectual property and their protection, and the regulation of financial activities in the City. In my LLM (done at the College of Law), the course providers were at pains to ensure you could ‘read’ a complicated commercial law case, knew how to pitch legal services to a client through an oral presentation, and knew how to draft complicated agreements. I have not done these activities to such a detailed level on the LPC.
I don’t think it’s a problem that I never studied these concurrently, however. For example, the award-winning Simmons and Simmons LPC/MBA course allows you to study these subjects side-by-side. Either way, I feel hand-on-heart it’s a brilliant strategy by BPP to offer such an integrated specialised training, which I can see as very appealing to the corporate clients of BPP. As I am clearly not doing these courses myself, I hope you will allow me my strong endorsement of them!
Roll over “outcomes-focused regulation” being implemented by the Solicitors Regulation Authority. The current core syllabus for the Legal Practice Course, the stage of legal training prior to the training contract, provides for a “objects-focused curriculum’.
Inevitably, the bread-and-butter of law will be the documents. Indeed, the Business Law Practice glides effortlessly through the documentation required to ensure shareholder dividend for an English company, and even completes the story by describing the document required for a company to end. People aren’t involved in business and solicitors accounts obviously; numbers are.
People are an occupational hazard in civil and criminal litigation, civil litigation taking pride-of-place of course in the context of what happens when individuals sue companies or companies sue companies. “Objects-focused curriculum” is in a world of own of course when land is considered for an entire subject.
It is no wonder that the English company and inanimate objects figure prominently in the Legal Practice Course. However, law indeed has to respond to some of the problems of society in general, which includes – but does not include exclusively – companies. There is absolutely no doubt that professional ethics, practical legal research, and other skills should be part of the new-look Legal Practice Course, but it would be nice if the Legal Practice Course did not take an agenda which is entirely shareholder-focused.
It is pitiful that a law student can get to the training contract, if he is lucky enough to be offered a training contract at all from a large corporate, without knowing a basic minimum of information about immigration, asylum, welfare benefits or employment? But these involve stakeholders don’t they? They’d be rather out-of-place in an ‘objects-focused curriculum’.
Here are some other nice objects, anyway…