Advice and the Draft of Further Statement of Claim - Assignment Example

Advice and the Draft of Further Statement of Claim Name: Course: Tutor: Date: Counsel’s Brief 1. Memorandum of Advice addressing the following issues: a. in relation to the Statement of claim: i. Elements that need to be satisfied for our to seek an amendment of the Statement of claim; A statement of claim may be amended by a claimant only once within 28 days following the date on which it was filed. However, unless the court orders otherwise, the statement of claims may not be amended after a date of trial has already been fixed.1 Should a claimant amend his or her statement of claims in accordance with the provisions stated above after defence has already been filed by the defendant, the defendant may subsequently amend his defence within 14 days after being served with the claimant’s statement of defence.2 A claimant’s right to make an amendment to the statement of claims in accordance with subsection 1, of the Civil Procedure Act, is not affected by ant type of amendment made in accordance with section 7 subsection 22 of the Civil Procedure Act. It is worth noting that Section 7.22 of the civil procedure Act gives consent to the claimant to amend documents in the hearing to substitute the name of the business with the defendant’s personal name.3 A good example in this case is to substitute Kut & Kolour for Wayne Rooney’s name. This is however not of any significance within this context. ii. Whether or not the claimant’s Statement of claim is presently deficient hence is at risk of being struck out To ascertain whether or not the client’s Statement of claim is currently deficient and thus at risk of being struck out it is imperative that to take a closer look at what constitutes Statement of claim. According to Magistrates Court of Western Australia, a Statement of claim is aimed at summarising issues in a dispute to depict a claimant’s case.4 A Statement of claim is filed after the respective case is defended. One may file and issue a Statement of claim if ordered by a Registrar to be issued to the other party. This can be done within 14 days following the pre-trial conference or in conjunction with the claim. Two copies together with the original of the relevant statement of claim must be filed at the court’s registry where the claim was initiated. It should be noted that copies of the Statement of claim ought to be more than two if there are several defendants. Incidentally, there are two forms of claims; these are general and minor claims.5 Under the minor claims category, the Statement of claim must contain summarised facts relating to the respective claim and the form of relief and remedy that the client desires. Under the general claims category, a Statement of claim must include the following contents: summarised facts attributed and relevant to the respective claim; the claim’s legal basis; the parties to the claim’s basic contentions; clear specification of relief or remedy that the claimant seeks; and if the amount attributed to the claim has been abridged to rope in the claim within the jurisdictional edge, it is imperative that a statement be prepared to that effect.6 It is important that the Statement of claim be restricted to the appropriate facts relevant at supporting the claimant’s case against the defendant. The facts should be outlined in a logical manner by arranging the respective dates attributed to the claims in order along the basis of how each fact or allegation can or will be proved. Allegations of general form must not be included, only details of when and where relevant events took place should be considered.7 On the segment relating to legal claim basis, it is highly recommended that the claimant seek legal advice. The claimant ought to reflect the reason as to why the defendant has lodged notice of intention to defend on the statement of claim. That is, the claimant is only required to reflect such reasons if he or she is aware of the same.8 If the claim is classified under the minor case procedure, date, time, and venue, for a mandatory pre-trial conference and advice to the parties must be set by the registrar. On the other hand, if the claim is classified under the general procedure the claimant must within 14 days of receiving a reply of the defendant’s intention to defend the claim, appeal to the registrar to list the claim for purposes of a pre-trial conference. Not doing so could lead to the defendant lodging an application to the court to pass judgement on the claimant without trial. Such a request must be filed at the registry of the court together with a stipulated filing fee.9 A claim against Wayne Rooney by David Beckham falls under the general claims category. Based on the elements depicted above on factors that must be considered prior to preparing a statement of claim it can be deduced that the statement of claims prepared by David Beckham is quiet sufficient. The first procedure to preparing a statement of claim is summarising the facts attributing to the statement of claim.10 This first procedure has been observed in preparing David Beckham’s statement as facts attributing to Beckham’s claim have been outlined in summary form to achieve this end. The second procedure in preparing a statement of claims falling under the general procedure claims category requires the claimant to depict the claim’s legal basis. This segment was also incorporated in Beckham’s Statement of Claim. Detail number four of Beckham’s Statement of claim indicates the defendant contravened section 52 and 53 Trade Practices Act. Beckham thus pins this as the legal grounds to support his case. It can therefore be deduced that Beckham’s Statement of claim satisfies procedure number two of the general procedure claim that the claimant provides a legal basis to support his or her claims.11 The Statement of claim attributed to David Beckham does not reflect both parties’ basic contentions. It should however be noted that this is in accordance with procedure number three of the general procedures claims where the claimant is required to incorporate facts as to why the defendant has decided to put up a defence against the claims.12 In this case, going by the given facts, David Beckham was not aware of the reasons why Wayne Rooney had filed an intention notice to defend the claims. To this end the third procedure of the general claims could not be incorporated in David Beckham’s statement of claims. The statement of claims attributed to David Beckham fulfils procedure number four of the general claims procedure. As indicated in a paragraph above, the fourth procedure of the general claims requires that the claimant should state the relief or remedy that he or she seeks. The statement of claims specifies that the claimant, David Beckham claims damages. Specifically, the claimant seeks to be compensated for damages, a formal apology, reimbursement of costs incurred and losses sustained following the injuries attributed to the hair product, and interest. It can therefore be concluded that of the procedures to preparing a statement of amendment claims, the only element that David Beckham’s statement of claims did not adhere to was in summarising the date of events and the filing details. The statement of claims only summarised the date of events in number form leaving out on the date particulars. This can however not be used by the courts as the basis of dismissing the statement of claims attributing to David Beckham. Other than the date which is a significant element in justifying the claimant’s claims, all the other important and relevant elements are present in the initial statement of claims. The claimant’s current statement of claim is deficient, however the degree to which it is deficient is negligible. One of the substantial grounds that can warrant a dismissal of a statement of claims by a court is lack of legal grounds to support the claimant’s case against the defendant. Consequently, facts to the claims filed by David Beckham are tangible enough to initiate proceedings against the defendant, Wayne Rooney. b. in relation to possible settlement negotiations: i. The best method of ADR that is suitable enough and could be used to facilitate settlement negotiations The form of alternative dispute resolution that one can apply is dependant on the elements constituting the respective dispute. There are four forms of legal alternative dispute resolution, these are; Conciliation, Mediation, Negotiation, Private Ordering, Community Justice Centres, and Arbitration. Conciliation as a form of dispute resolution pertains to either property or children matters. Conventions related to conciliation are normally held if application is made to the court for settling property. This takes place prior to the final hearing. The lawyers involved and the inherent parties convene with the registrar or any other person formally appointed by the court specifically for purposes of such matters. The objective of such a convention is to attempt to reach a consensus in order for consent orders to be made.13 Mediation as a form of alternative dispute resolution is where the parties involved convene with a mediator who is specifically trained to deal with such issues. The aim of this convention is to try and make the parties involved to sort out their differences in an attempt to try and reach an agreement.14 Negotiation entails both parties openly discussing their inherent differences in attempt to sort out settlement issues with or without the presence of lawyers. Incidentally, the parties involved might enlist the services of their lawyers to sort their differences in an attempt to reach a consensus that both parties would deem satisfactory and just. The basis of this form of dispute resolution is that they both reach a compromise considered fair enough.15 Private ordering is an expression applied to mean the negotiation of settlement terms or consent orders outside the courts where the litigation process has already began. This is either through meetings or communications between lawyers to the disputing parties or with the help of privately enlisted mediators.16 The introduction of autonomous community based services like the Community Justice Centres that offers confidential mediation, conflict management services, and counselling at absolutely no costs. These centres are specifically significant in resolving disputes in the neighbourhood as well as interpersonal and family disputes. Attending these services is not compulsory though they are effective. The success rate attributing to Community Justice Centres is set at eighty percent.17 In arbitration as a form of dispute resolution, an individual, preferably an arbitrator takes into account each party’s views and opinions regarding the respective dispute. Subsequently, the administrator makes a legally enforceable decision, that is, a binding decision enforceable to both parties. The rules and procedures governing arbitration are less formal compared to the court procedures and every party involved must consent to be bound by the decision reached by the arbitrator. If an individual is a beneficiary to an award offered following arbitration, they can register the same with the court which makes it synonymous to a court order. Arbitration can be used in court basing on the fact that it is not confidential, that is, it is admissible.18 To this end, it would be appropriate if Mr. David Beckham settles for private ordering in settling the dispute out of the court rooms. ii. Why and what are the features of the recommended method of ADR? Selecting private ordering as the most appropriate method of settling the dispute out of court is based on the fact that it takes into account Beckham’s busy schedule hence it is convenient at addressing the same. Some of the inherent features of this type of ADR are that it aims at settling court orders outside the court room and hence its task description is already cut out awaiting execution. This form of dispute resolution aims at settling disputes that have already been initiated outside courts as is with this particular case between David Beckham and Wayne Rooney. Finally, under this form of dispute resolution it is not necessary that either of the involved parties be physically present during the settlement process. During the settlement process, both parties to the dispute can assign their representatives possibly lawyers or mediators to reach an amicable agreement.19 It is against this background that this form of dispute resolution is deemed appropriate and convenient in facilitating a dispute resolution between David Beckham and Wayne Rooney outside court. iii. What are the consequences if the matter does not settle? According to Lamb and Littrich, the several civil courts in Australia have rules and procedures specifically addressing compromise of claims, penalties, and costs where an offer for settlement is rejected by any of the disputing parties.20 This implies that should any of the parties dispute the settlement reached by any form of alternative dispute resolution aimed at settling their respective dispute, then the disputing party will be compelled to suggest another dispute resolution method. Should the settlement reached by the alternative dispute resolution suggested by the unsatisfied party be less satisfactory than the initial settlement, then the party that suggested a different method from the initial alternative dispute resolution will be penalised in accordance with the predetermined rules. The Evidence Act of 1995 states that unless termed as special offers, all negotiating settlements are fair and with no prejudice. That is, they cannot be permissible as evidence except on cost issues. The aim of this is to persuade a willingness to carry out discussions without having apprehension of concessions being raised by the court in future.21 The appropriate method selected to facilitate settlement negotiations between the claimant and the defendant depends on the actual dispute being contested and the degree to which the parties involved seek to influence the resolution process. This is in tandem with the best interests of the client. Mr Beckham must be made aware that other than stress and the increased costs resulting from court proceedings there are also additional adverse elements culminating from these court proceedings. Not settling the dispute outside the court would imply the matter being referred back to the court in an attempt to seek justice which in effect would culminate to adverse factors.22 These adverse factors include a lengthy court process of reaching the final result and the inherent litigation risks; and the fact that the court process takes long to reach the final decision which consequently might favour the defendant as opposed to the claimant. Another facto is the possibility of extremely high legal costs generated by litigation due to the lengthy court proceedings.23 The possibility that an alternative dispute resolution may be far much better than an order imposed by the court, since the alternative dispute resolution may be more flexible compared to the variety of orders available within the court’s powers. An urge to maintain confidence in the legal system by the parties involved in the dispute. An urge to maintain a cordial relationship among the parties involved.24 Parties involved have the opportunity to tell their side of the story like it really took place in contracts to the formal court process filled which is somehow rigid. Thus referring the matter back to the court would imply that the rigid court process be adhered to. An alternative dispute resolution process is likely to have a sense of goodwill or to mitigate the conflict from escalating which is particularly significant in a situation where the relationship between the disputing parties might continue in future.25 Should the matter be referred back to the court, the chances of such a benefit being enjoyed is less likely since the court is more focused on providing justice to the aggrieved party as opposed to maintaining a cordial relationship between the parties involved. AMENDED STATEMENT OF CLAIM Amended following orders made on 28 February 2011 COURT DETAILS Court Local Court Division General Claims Case number SC 453 of 2010 TITLE OF PROCEEDINGS Plaintiff DAVID BECKHAM Defendant WAYNE ROONEY PTY LTD ACN 000 111 222 FILING DETAILS Filed for DAVID BECKHAM, Plaintiff Amount of claim Interest Filing fees Service fees Solicitors fees TOTAL PLEADINGS AND PARTICULARS Details of the claim are as follows: 0 The Plaintiff is an up-and-coming professional soccer player and part-time model. 1 The Defendant owns a hair salon called “Kut and Kolour”. 2 The Defendant owed the Plaintiff a duty of care. 3 The Defendant is a corporation for the purposes of the Trade Practices Act 1974 (Cth) and breached section 52 and section 53. 4 21 March 2010 The Plaintiff got his hair cut at Kut and Kolour and Wayne Rooney, the head stylist, recommended the Plaintiff buy “sKulpt”, a hair product that Wayne Rooney developed. 5 The Plaintiff believed Wayne Rooney because he was an expert hair stylist. 6 Wayne Rooney made representations that were misleading or deceptive.22 March 2010 When the Plaintiff put “sKulpt” in his hair, his hair fell out and his scalp was blistered. 7 The Plaintiff was in a lot of pain and had to get some medical help. 8 Because of the Defendant’s fault, the Plaintiff was not able to attend a movie premiere which contributes significantly to his modelling career 9 The Defendant should pay for the Plaintiff’s losses, including hair replacement, loss of income and also medical expenses. 10 The Defendant’s losses will be particularised prior to the hearing. 11 The Plaintiff seeks: A. Damages B. An apology C. Costs D. Interest Date: 28 February 2011 A Cole References Ainslie Lamb & John Littrich. Lawyers in Australia. Federation Press, 2007 Legal Services Commission of South Australia. Advantages of alternative dispute resolution. 16 April 2011. Magistrates Court of Western Australia Civil Jurisdiction. Fact Sheet 5: Statement of Claim. 16 April 2011. New South Wales Consolidated Regulations. Uniform Civil Procedure Rules 2005 - REG 19.1. 16 April 2011 Victoria Legal Aid. Types of Dispute Resolution. 16 April 2011. Read More