What makes a good statement of claim?

Your Statement of Claim or Particulars of Claim is the document which sets out what you are claiming and gives details of why you say you are entitled to a judgment from the court. It is sometimes called the Statement of Claim or Points of Claim which are the same thing. The particulars of claim will be the first thing a judge will read and is therefore critical to your case. You need to get it right as if it has to be amended later on there will be a delay and you will have to pay the costs incurred.

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Before drafting your statement of claim have clear in head:
Sub Headings and paragraphs for your statement of claim
Claims based in contract or agreement
Claiming money
What are the options for a response?
What is the legal effect of ignoring it?
What documents and information do you need to give your lawyer?

When drafting a statement of claim, give a summary of what you are claiming so that anyone reading it easily understands what your claim is all about. This is not the place however where you prove your claim. That will come when and if a defence is entered. You should not include any evidence as this will come later when the court gives directions. This will be to provide the evidence needed to decide the issues which have become apparent. You will then do this by filing witness statements and disclosing your documentary evidence. Here you are just giving a concise statement so that anyone reading it understands what your claim is all about and what you are seeking.

Before drafting your statement of claim have clear in head:

What is your cause of action-for example breach of contract
What are the elements of your cause of action which you need to establish-for example that a legally binding contract was created
What are the provable facts of your case to satisfy the cause of action
What remedy do you require and is it one which the court can provide.

If separate from the claim form, the Statement of Claim should be headed up giving the name of the court in which it is issued and the Claimant and Defendants’ names. You will then give the facts behind your claim writing in numbered paragraphs. Keep the paragraphs (and your sentences) as short as possible and use a separate paragraph for each fact and point you are making. Avoid lengthy convoluted passages. At the end of your statement of claim you will put a statement of truth and then sign and date the document.

Start off by identifying the parties in the claim. Explain the relationship between yourself and the other party. Show that the court has jurisdiction to decide the case by giving the names and address of the parties and any other relevant information. If persons, you may wish to include their age and occupation if this could be relevant. If a firm or company, make this clear and provide their registered office address or place of business.

Then go on to explain the cause of action. You only need to set out basic information such as that you had entered into a contract with the defendant which has been breached. Tell the story and set out the facts on which your case is based. Do so in chronological order as if you are telling a story.

Use simple language. There is no requirement to quote the law. Do not feel that you need to use legal terms or write in ‘legalese’. This is best avoided. Avoid repetition and be as brief as the facts allow. Do not exaggerate anything and do not include anything which cannot be proved. Never include your opinion on anything.

Sub Headings and paragraphs for your statement of claim

Break down your claim into its constituent parts. These can be set out in sub-headings. Thus in a personal injury claim you might have sub headings – and would certainly have paragraphs – dealing with

(a) the duty of care owed to you,
(b) how that duty was breached, and
(c) the consequence of the breach of duty and loss suffered.

Claims based in contract or agreement

In a claim based in contract or an agreement between the parties you will deal in turn with

(a) the terms of the contract and the intention that they should be legally binding
(b) how the defendant has breached the contract and
(c) the loss you have suffered as a consequence of the breach.

It can sometimes be difficult to differentiate between evidence (which should not normally be included) and a fact necessary to establish your cause of action. If in doubt include it especially if it goes to the telling of the story and explaining what has happened.

Make sure that you have dealt with every fact needed to establish your claim. If you miss out a fact needed to establish your cause of action your claim may end up being dismissed.

Finish off by making clear what you are asking the court to do. This could well be to order the defendant to pay an amount of money in damages, return certain goods or rescind a contract.

If you are seeking interest on money owed, you must make a statement to that effect and say whether it is contractual interest under an agreement or statutory interest under an enactment which should be specified. Set out the dates between which interest is claimed and the daily rate.

Claiming money

If you are claiming money you must always include a statement of value within your particulars of claim. This will say either

(a) the amount of money claimed,
(b) either not more than £10,000, between £10,000 and £25,000 or over £25,000 or
(c) that the claimant cannot say how much is likely to be recovered.

With personal injuries claims you must state the amount you expect to recover as general damages for pain, suffering, and loss of amenity. This will be (a) not more than £1,000; or (b) more than £1,000.

If your claim is based upon a written agreement or contract, a copy of the contract or document relating to the agreement must be attached to the statement of claim showing any conditions incorporated into the contract.

If your claim is based upon an oral agreement, the statement of claim should set out the words used and state by whom, to whom, when and where they were spoken. If it is based on conduct relied you should state by whom, when and where the acts constituting the conduct were done.

If you are intending to rely upon any of the following in your claim the facts in support of your allegations must be specifically set out.

allegations of fraud,
illegality by the defendant,
a misrepresentation by the defendant
any breaches of trust,
evidence of notice or knowledge of a fact,
unsoundness of mind, undue influence, or willful default, by the defendant
any facts relating to mitigation of loss or damage.

Finally, every statement of claim must contain a statement of truth which will usually be at the end of the document. Words such as ‘I believe that the facts stated in these particulars of claim are true’ are sufficient.

‘Originating Process’ is a generic term for various documents by means of which a civil litigation is commenced. It is defined by the Civil Liability Act (NSW) to mean “the process by which proceedings are commenced, and includes the process by which a cross-claim is made.”

One of the documents which can start a court case is a statement of claim. A statement of claim is a court document that sets out how much or what the other party claims someone owe them and why they are making the claim. The person who files the statement of claim is called the plaintiff.

An originating process almost always needs to be served to inform the defendant of the case being brought against them, and is the first step in litigation. The requirements for creating and formalising an originating process are as follows (further regulatory information can be found in the relevant Uniform Civil Procedure Rules):

An originating process must be served to the defendant personally (except in cross-claims against active parties)
An originating process in the Local Court may be served by delivering it to the defendant’s registered business or residential address and leaving it in the care of a person who appears to be 16 years or older and works or resides at the address OR the Court may serve it by post to the business/residential address.
An originating process must be served on the defendant within 6 months of filing.
In the District Court, the originating process must be served within 1 month where the defendant is inside NSW.

What are the options for a response?

When you receive the statement of claim you have a number of options to take within 28 days of being served, including:

File a defence

If you believe you don’t owe all or part of the claim, it is important you file a defence within 28 days of receiving the statement of claim at the same court where the claim was filed.

Filing a defence prevents you from having a default judgment made against you and it can be done at the same time as other actions explained below, such as asking for particulars or filing a cross-claim.

Pay the amount claimed or return the goods claimed

If the statement of claim is relating to money and you agree with the claim, you may:

Negotiate an agreement about settling the matter with the plaintiff and have the statement of claim withdrawn.
Pay the amount owed and notify the court by filing a notice of payment. The full amount owed will usually include any interest and the costs claimed by the plaintiff in the statement of claim.
File an acknowledgment of liquidated claim form, which tells the court you agree you owe the money, and then file an application to pay it by instalments. In this case there will be a court judgment against you, so the plaintiff can take action to enforce the judgment.

If the statement of claim is relating to goods, and you agree with the claim, you may:

Negotiate with the plaintiff an agreement about settling the matter and discontinuing the case.
Set out your agreement in writing as terms of settlement and ask the court to make orders according to the terms.

Ask for more information

If you need more information about the matters in the statement of claim, you can write to the plaintiff a letter of request for further and better particulars.

You can also ask the plaintiff for further and better particulars after you file your defence.

If the plaintiff applies for a default judgment against you before responding to your request for more information, you can use your letter asking for further and better particulars to support an application to have the judgment set aside.

Another option you have to ask for more detail about the claim is by filing a notice to plead facts within 28 days of being served with the statement of claim.

You should get legal advice before deciding if you should file a notice to plead facts or a defence.

Negotiate

You can negotiate a settlement of the case with the plaintiff.

Go to external dispute resolution – consumer credit debts

If the claim is relating to a consumer credit debt, you can try an external dispute resolution (EDR) by lodging a complaint to the Australian Financial Complaints Authority (AFCA).

The EDR scheme is a free, independent service for resolving disputes between consumers and credit providers. Consumer credit debts include home loans, credit cards and personal loans.

When you make an application to AFCA, you should tell the creditor or their legal representative about it.

If your application is accepted, AFCA will contact the creditor and try to resolve the dispute through negotiation and conciliation. The creditor generally cannot continue with the court case or enforcement action without AFCA’s consent while the dispute is being considered.

If the dispute cannot be resolved by agreement, AFCA will make a decision. If you agree with the AFCA’s decision, it will become binding on your creditor. If you do not accept AFCA’s decision, you should get legal advice.

It is recommended to try EDR before filing a defence form.

File a cross-claim

If you believe that the plaintiff owes you money or has your goods, you may be able to file a claim against the plaintiff. This is called a cross-claim, and it must be filed within 28 days of the date you have been served with the statement of claim.

At the same time you file a cross-claim, you must also file a defence, otherwise the plaintiff can get a judgment against you.

We recommend that you always seek legal advice as soon as possible before taking any steps when you receive a statement of claim.

What is the legal effect of ignoring it?

If you do not take any action within 28 days of being served with a statement of claim, the plaintiff may get a default judgment made against you without you attending court or being notified. The default judgment can then be enforced.