Summary LPC EXAM STUDY GUIDE: CIVIL LITIGATION NOTES 2024 (DISTINCTION)

LPC EXAM STUDY GUIDE: CIVIL LITIGATION NOTES 2024 (DISTINCTION) Drafting- Particulars of Claim/ Defence/Witness Statement (20 marks)  Check the dates of the contract and everything  Check the definitions  Inclusive/ exclusive of VAT (generally inclusive)  Figures and loss amounts  duty of care  16PD7.4 states: “where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken” IN THE HIGH COURT OF JUSTICE Claim Number: 2019 HC 1234 QUEEN’S BENCH DIVISION B E T W E E N RITCHISONS INVESTMENTS LIMITED Claimant - and - BONO WELLER & CO LLP Defendant _______________________________ PARTICULARS OF CLAIM _______________________________ 1. Para 1 always Background - At all material times the Claimant was a company engaged in the development and management of a hypermarket. - The Defendant was a firm of solicitors practising as an LLP. [On [date] the Claimant instructed and retained Mr Smith, a solicitor, who was an employee or partner of the Defendant firm.] 2. In August 2017, the Claimant identified a site in Kent (the 'Land') where it wished to develop a hypermarket. The Land was subject to a restrictive covenant to the effect that the owner could not construct any building on the Land which was greater in height to the buildings which existed on the neighbouring property (the 'Restrictive Covenant'). 3. In order to be commercially viable, it was necessary for the hypermarket to have provision for car parking. The Claimant employed architects whose plans (the 'Plans') for Commented [N1]: LLP or limited, make sure that is clear Commented [N2]: Make sure singular or plural claimants and defendant LPC EXAM STUDY GUIDE: CIVIL LITIGATION NOTES 2024 (DISTINCTION) the hypermarket were for a two storey building, the second storey of which was to be a car park. The height of the hypermarket in accordance with the Plans was below the top level of the chimneys on the buildings which existed on the neighbouring property but above the ridge-line of those buildings. 4. On 5 October 2017, the Claimant (through its Operations Director, Francis Vollbehr) sent a letter of instruction to Mr John Weller (‘Mr Weller’), a solicitor who was a partner in the Defendant, to act on the potential purchase of the Land and, in this connection, to advise whether the Plans would be in breach of the Restrictive Covenant. Mr Weller duly accepted the Claimant’s instructions on behalf of the Defendant by a letter dated 6 October 2017 (the ‘Retainer’). A copy of the Retainer is attached to these Particulars of Claim. 5. The Defendant was instructed on the basis that, at all material times, Mr Weller held himself out to be an experienced, skilled and competent solicitor specializing in commercial property. 6. It was an express term of the Retainer at clause 5 that Mr Weller (on behalf of the Defendant) would provide advice to the Claimant relating to the purchase and development of the Land and the Restrictive Covenant, and would advise it of any circumstances and risks of which the Defendant was aware or considered to be reasonably foreseeable that could affect the outcome of the matter. 7. It was an implied term of the Retainer that Mr Weller (on behalf of the Defendant) would, at all material times, exercise the reasonable care and skill to be expected of a reasonably competent solicitor specialising in commercial property. 8. Further or alternatively, Mr Weller (on behalf of the Defendant) owed the Claimant a like duty of care in tort. 9. By way of a letter dated 16 October 2017, Mr Weller (on behalf of the Defendant) advised the Claimant that it would not be in breach of the Restrictive Covenant if it kept the building of the hypermarket below the height of the chimneys on the neighbouring property. 10. In reliance on Mr Weller’s advice referred to in paragraph 9 above, the Claimant duly completed the purchase of the Land on 30 November 2017 for £20,000,000. Further, the Claimant borrowed funds from its parent company in order to enable it to purchase the Land. The funds were advanced on the day of completion. On or about 14 December 2017, the Claimant commenced development work in accordance with the Plans. 11. On or about 4 January 2018, the beneficiary of the Restrictive Covenant (the 'Beneficiary') threatened the Claimant with legal proceedings on the grounds that development work in accordance with the Plans would be in breach of the Restrictive Covenant; the height of the proposed hypermarket was above the ridge-line of the buildings which existed on the neighbouring property. The Claimant accordingly sought further advice from Mr Weller who confirmed his original advice as given on 16 October 2017. 12. On 11 January 2018, the Claimant met with the Beneficiary. The Beneficiary referred the Claimant to a Court of Appeal decision of 5 January 2016 which, the Beneficiary told the Commented [N3]: If necessary, attached a copy of any contract, agreement or retainer mentioned in the question. Commented [N4]: This paragraph has been inserted to allege that the standard of care owed was a higher duty than that of a normal solicitor because Bono Weller & Co LLP held John Weller out as a specialist in commercial property. Commented [N5]: breach of contractual duty: - which express term - which implied term Commented [N6]: If the contract is for the sale of goods, the correct implied terms will be that the goods should be of satisfactory quality and possibly fit for the purpose made known to the other side. If the contract is for the provision of services, the correct implied term will be that the provision of goods and service should have been conducted with reasonable skill and care. Commented [N7]: This paragraph states the duty in tort owed by the Defendant. It would also be correct to refer to ‘a like duty at common law’. Note that it starts with the words: ‘Further or alternatively’ indicating that there is a separate, independent duty in tort Commented [N8]: The terminology ‘On or about’ used here and in the next paragraph is used where the exact date is not clear to a Claimant. The aim of the Claimant is to prevent the Defendant from denying the paragraph by the Defendant stating in its Defence that the date referred to was incorrect by a day or two. Claimant, had decided, in similar circumstances, that ‘height’ meant ‘ridge-line’ and that the Claimant would therefore be in breach of the Restrictive Covenant if it continued its development of the hypermarket in accordance with the Plans. The development had already begun and the Claimant therefore agreed with the Beneficiary to alter the Plans so as to build to one storey rather than two, thereby keeping the hypermarket below the ridge-line of the buildings on the neighbouring property. 13. In breach of the express term of the Retainer referred to in paragraph 6 above, and in breach of the implied term of the Retainer referred to in paragraph 7 above, and in breach of the duty of care in tort referred to in paragraph 8 above:- PARTICULARS OF BREACH (a) Mr Weller failed to keep up-to-date on the law; (b) Mr Weller advised the Claimant it would not be in breach of the Restrictive Covenant if the hypermarket was developed in accordance with the Plans and below the height of the chimneys on the neighbouring property; (c) Mr Weller failed to advise the Claimant that the meaning of the word ’height’ was ambiguous and could mean ridge-line or chimney height; and/or (d) Mr Weller failed to advise the Claimant that there was real scope for dispute as to the construction of the Restrictive Covenant and instead provided definitive advice. 14. As a result of the breaches, the Claimant was not advised that it could potentially be in breach of the Restrictive Covenant if it built a two-storey hypermarket on the Land in accordance with the Plans. Had Mr Weller so advised, the Claimant would not have purchased the Land. Further the Claimant would not have had to borrow monies from its parent company to fund the purchase. The Claimant has suffered a loss amounting to the costs of funding the said loan from the date of the advance at a rate of 2.5% above the Bank of England Base Rate. The loss suffered at the date of issue of this claim resulting from the costs of financing the said loan amounts to £1,200,000 and continues to accrue at a rate of £1,643 per day. 15. As a result of the agreement reached with the Beneficiary (as referred to in paragraph 12 above), the Claimant was unable to include a car park on the second storey of the hypermarket and was forced to purchase additional land for car parking (the ‘Additional Land’). The Additional Land was purchased at a cost of £5,000,000. The Claimant also incurred necessary legal costs and expenses in purchasing the Additional Land. 16. As a result of the matters set out above, the Claimant is the owner of the Land and the Additional Land. The Claimant gives credit for the value of the Land and the Additional Land, together with the increases in the values as at the date of these Particulars of Claim. 17. As a result of the breaches referred to in paragraph 13 above, the Claimant has suffered loss and damage. Commented [N9]: The wording ‘As a result of the breaches’ sets out the causal link between the breach and the loss which the Claimant has suffered. Note again how this paragraph refers back to the paragraph number in which the breach was referred to. PARTICULARS OF LOSS AND DAMAGE Price paid for the Land £20,000,000 Price paid for the Additional Land £ 5,000,000 Cost of funding to date £ 1,200,000 Building costs £ 300,000 Legal costs and expenses £ 25,000 LESS: Actual value of the Land at the date of purchase (£18,000,000) Actual value of the Additional Land at the date of purchase (£ 1,500,000) Increase in values of the Land and the Additional Land since the date of purchase (£ 2,500,000) ____________ TOTAL £ 4,525,000 18. The Claimant claims interest on such damages as are awarded to it pursuant to section 35A Senior Courts Act 1981, at such rate and for such period as the court thinks fit. AND THE CLAIMANT CLAIMS: (i) damages under paragraph 17 above; and (ii) interest under paragraph 18 above.