Thanks for your replies.
Theft of a motorbike which I insured in Essex but which got stolen from outside my property in London which I was renting out.
One of the guys from the insurance company made unfounded accusations about me living there, just because I paid the full amount of council tax. But he never thought to ask me if I let the property out to anybody else other than David (who he assumed lived there alone!)
And just because I paid the full amount of council tax and never claimed a single persons discount, he stated tat this indicated that I lived at the address with David. No it doesn't!
All it indicated was more false accusations from him alleging that I lived in London when I didn't! It was simply an excuse to wriggle out of settling the theft claim.
The same thing happened to one of the coppers who attended the scene - his car was stolen and his insurers wriggled out of settling the claim, after finding obscure loop-holes in the small print which (I read in an article the other day) some household insurance schedules contain more words than Lewis Carroll's book 'Alice in Wonderland'.
If they had offered to settle with £4000, I would have accepted. But since the theft, I had my replacement bike stolen 1.5 years later and the company with whom it was insured with read the 'libellous' comments from the previous insurance company on the CUE database and also refused to settle the theft claim, threatening to take me to court for the remainder I owed for the annual policy, threatening to involve bailiffs and debt recovery companies. I told them where to go and said once I've sued my previous insurers, I'll be seeing you in court too! They pissed off after that! LOL
I haven't filed my POC yet and every POC I've read online, would never fit on the MCOL Claim Form, not when you have to include this lot:
Particulars of Claim
The Particulars of Claim are contained in either:
· the claim form, or
· a separate, free-standing document, entitled Particulars of Claim.
Purpose of Particulars of Claim
The Particulars of Claim:
· is amongst the most important document for the claimant in litigation, because it says what the dispute is all about, and
· informs the defendant of the case they have to defend.
All other court documents follow from the particulars of claim.
It defines what is relevant to:
· what the defendant must address in the Defence
· the first case management conference
· case summary
· list of issues
· case management directions
· witness statements
· skeleton arguments for trial
· the trial bundle
· what is argued at the trial
· what has to be decided by the court
Where the particulars of claim do not disclose a cause of action, it may be struck out because it does not disclose a claim recognised by law. Likewise summary judgment may be available when there is no defence to the claim.
There are two central principles with Particulars of Claim.
· The claimant must state all the facts necessary for the purpose of formulating a complete cause of action against the defendant, and
· The claimant must give the defendant sufficient information about the facts alleged to enable them to understand the case that must be defended.
(The Particulars of Claim must also set out the remedies claimed. See below)
If a claimant wants to bring a legal claim, it must be a claim recognised by law.
It also needs to be framed in a way that the defendant (and the court) can understand it.
Inadequate Particulars of Claim
When those prerequisites are not met:
· defendants can’t prepare their defence as they should, because the claim is not clear
· unnecessary expense will be incurred by opposing parties preparing to defend or respond to allegations, because the legal claim can’t be understood
· courts will not be sure of the case which it must decide
In those cases, the Particulars of Claim are said to be “embarrassing”: the opposing party can’t respond to the allegations properly. They don’t have the required “particularity”. And the other party uses that word "embarrassing" in their statement of case, it's an indication that a strike out application may be being hatched.
Where’s the line drawn?
Particulars of Claim must be “sufficient”.
If all of the facts pleaded in statement of case are alleged are assumed to be true, and the test for summary judgment is not satisfied, a cause of action has been made out. The legal action also probably isn't ripe for a strike out application.
At the other end of the scale, the claimant is not required to concede to excessive demands for detail.
Whether the grounds for the claim have been properly particularised also lies in part in whether the opposing party can understand the case being advanced.
Rather than strike out the action, it may be that a court would be more inclined to order that amended particulars of claim should be filed and served to clarify matters. If the defendant can't understand the claim, it might be that the court can't either.
Some causes of action require the detail of the claim to be drawn out in detail in the Particulars of Claim.
The cause of action may be so serious or have particular requirements, that the rules of court require the parties to provide specific details.
They include allegations of:
· civil fraud
· the fact of any illegality
· details of any misrepresentation
· breaches of trust
· notice or knowledge of a fact relevant to the dispute
· details of unsoundness of mind or undue influence
· details of wilful default
· facts relating to mitigation of loss or damage
· aggravated damages or exemplary damages
If they are included, the other party can't properly prepare their own case.
Allegations of fraud, dishonesty and bad faith deserve special mention.
It gives a clear example of what is required generally.
Vague allegations of civil fraud are not enough to establish or infer liability from any statement of case. It’s not adequate in a statement of case.
The allegations must be detailed enough to show how it is said that the opposing party has acted fraudulently with the fraudulent intention.
The actual facts and circumstances which come together to imply, or at least very strongly suggest civil fraud must be set out explicitly. The words “fraud” or “dishonesty” don’t even need to be used. Anything in the ballpark of allegations of serious impropriety qualify for proper particularisation.
That happens when one party makes statements to the other on which they were intended to act, and those statements were untrue, and said to be known to be untrue.
Relationship between Fraud and Innocence
Alleging fraud is a serious business.
If fraud, dishonesty or bad faith is alleged, must be drawn out to show how it is said that was the case.
It may be that the allegations are such that the facts alleged from which fraud might be inferred are consistent with innocence.
So much so, that if the allegations can be read as being consistent with innocence, a court will almost certainly not make a finding of fraud.
The pleading is adequate if the allegations of fact bear no meaning other than fraud.
Here’s some case law on the point.
In McDonald's Corp v Steel (1995), Neill LJ said:
It is true that a claimant must not put a […] a plea of fraud […] on the record lightly or without careful consideration of the evidence available or likely to become available.
In Davy v Garrett (1878), Thesiger LJ said:
[…] no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts. […]
It may not be necessary in all cases to use the word 'fraud' - indeed in one of the most ordinary cases it is not necessary.
An allegation that the defendant made to the plaintiff representations on which he intended the plaintiff to act, which representations were untrue, and known to the defendant to be untrue, is sufficient.
The word 'fraud' is not used, but two expressions are used pointing at the state of mind of the defendant - that he intended the representations to be acted upon, and that he knew them to be untrue.
It appears to me that a plaintiff is bound to show distinctly that he means to allege fraud. In the present case facts are alleged from which fraud might be inferred, but they are consistent with innocence.
They were innocent acts in themselves, and it is not to be presumed that they were done with a fraudulent intention.
Fraud, dishonesty and bad faith cannot be inferred from the absence of particulars. It will not be presumed from the text of the statement of case.
If there is no evidence to support the claim (which would have been exchanged in pre-action correspondence) the allegations or the entire claim may be struck out.
Requirements for Particulars of Claim
Also, Particulars of Claim must:
· include a statement of value: state the amount of money claimed or whether the amount is:
· not more than £10,000
· between £10,000 and £25,000,
· over £25,000, or
· is not known to the claimant
· in contract claims:
1. written contracts: annex copies of contracts and other documents containing the agreement between the parties, where relevant
2. oral contracts: set out the precise contractual words spoken, and state by whom, to whom and where the words were spoken
3. by conduct: specify any agreement by conduct relied on, and state by whom, when and where the acts constituting the conduct were done
· interest: state interest is claimed, and if so:
1. how much
2. the rate of interest
3. the grounds of the alleged entitlement (whether under a contract or statute such as the Senior Courts Act, County Courts Act or under a contract)
4. the method of calculation, and
5. the amount claimed to a date no later than the date the proceedings are filed;
· damages: state the grounds on which aggravated damages or exemplary damages are claimed, where applicable;
be endorsed with a statement of truth.
On which claim form is the box you refer to about submitting separate POC?
I certainly did not see one.
I never knew I had to include so many details and conform to so many rules and regs when completing the POC on the MCOL Claim Form in any case.
I was NOT told that the hearing last week was an application hearing, so I assumed I would simply submit my entire bundle and evidence and witness statements to the court, but the defendant (trained solicitor) simply wiped the floor with me requesting the claim be struck out on the grounds that I had no legal basis stated in my POC.
Now I know what to do regarding the POC, I just need to know what course of action I should take to get my claim reinstated?
I wish I had by-passed the MCOL - they're useless! I should have downloaded the Claim Form N1 and gone straight to court! LOL