Bar Professional Training Course (BPTC) Drafting and Opinion Writing Syllabus

What is the consequence under CPR 16.5 of failing to deal with an allegation in a defence?

An allegation not dealt with is deemed admitted, unless the defendant has set out a different version of events or it is an allegation of the amount of money claimed (which is taken to be in dispute).

When a defendant denies an allegation, what does CPR 16.5 require beyond a bare denial?

The defendant must state the reasons for denying it and, if intending to put forward a different version of events, must state that version. Bare denials are not permitted.

Define a 'counterclaim'.

A counterclaim is a claim brought by the defendant against the claimant within the same proceedings (under CPR Part 20). It is the defendant's own cause of action and is drafted like particulars of claim, requiring its own statement of truth.

What is the difference between a defence and a set-off?

A defence answers the claimant's allegations; a set-off is a money cross-claim raised as a defence which, if established, extinguishes or reduces the claimant's claim. Set-off operates as a shield, whereas a counterclaim is a sword seeking its own remedy.

What is a 'reply' and when is it used?

A reply is the claimant's optional statement of case responding to the defence, used to answer new matters raised by the defendant. It is required where the defence raises a defence (e.g. set-off) that the claimant wishes to address; silence is not taken as admission of the defence.

Can a reply be used to raise a new claim against the defendant?

No. A reply may only respond to matters raised in the defence. A claimant who wishes to advance a new claim must seek to amend the particulars of claim, not use the reply to do so.

What is a 'request for further information' under CPR Part 18?

A request for further information is a request that a party clarify any matter in dispute or give additional information about it, whether or not in a statement of case, to enable the other side to understand or prepare to meet the case.

What two purposes does a CPR Part 18 request serve?

(1) To clarify a matter that is in dispute, and (2) to obtain additional information about such a matter. It is confined to matters reasonably necessary and proportionate to enable a party to prepare or understand the case.

How should a CPR Part 18 request be formatted?

Concisely, in a separate numbered document headed with the case details, identifying the paragraph of the statement of case to which each request relates, set out so that the response can repeat each request and answer beneath it.

What is a 'witness statement' and what is its function at trial?

A witness statement is a written, signed statement containing the evidence a witness would give orally, verified by a statement of truth. At trial it normally stands as the witness's evidence-in-chief (CPR 32.4–32.6).

State four formal requirements of a witness statement under CPR Part 32 and its Practice Direction.

It must (1) be in the witness's own words and first person, (2) be expressed chronologically in numbered paragraphs, (3) state the source of any information or belief, and (4) be verified by a statement of truth signed by the witness.

What is the difference between a witness statement and an affidavit?

Both contain written evidence, but an affidavit is sworn or affirmed on oath before an authorised person, whereas a witness statement is merely verified by a statement of truth. Affidavits are required for certain applications (e.g. freezing/search orders).

Give two situations where evidence must be given by affidavit rather than witness statement.

Applications for freezing injunctions and search orders; and contempt proceedings. The court rules or a specific order require sworn evidence in these instances because of their seriousness.

What does it mean that a witness statement should contain only 'admissible' evidence?

It should set out facts the witness can prove, not inadmissible opinion or argument. Where hearsay is included, its source must be identified, and the statement must comply with the Civil Evidence Act 1995 notice requirements where relevant.

Define a 'schedule of loss' in a personal injury claim.

A schedule of loss is a document, usually annexed to the particulars of claim, itemising and quantifying the claimant's heads of damage, separating past (special damages) and future losses, so the monetary value of the claim is clear.

Distinguish 'special damages' from 'general damages' in a schedule of loss.

Special damages are past, quantifiable financial losses calculable to trial (e.g. lost earnings, care costs, expenses). General damages are non-pecuniary or future losses not precisely calculable (e.g. pain, suffering and loss of amenity, future loss).

How is future loss of earnings conventionally calculated in a schedule of loss?

By multiplying the annual net loss (the multiplicand) by a multiplier derived from the Ogden Tables, i.e. $\text{Future loss} = \text{multiplicand} \times \text{multiplier}$, the multiplier reflecting life expectancy/working life and the discount rate.

What is the function of the discount rate (Ogden rate) in calculating future losses?

It adjusts a lump-sum award downwards to reflect that the claimant receives money now which can be invested, ensuring the claimant is not over-compensated. The multiplier in the Ogden Tables already incorporates this discount rate.

Define a 'skeleton argument'.

A skeleton argument is a concise written summary of a party's submissions for a hearing, setting out the issues, the propositions of law and fact relied on, and the authorities, to assist the court and the opponent in preparing.

What should a good skeleton argument contain and avoid?

It should identify the issues, state each submission concisely with cross-references to the bundle and authorities, and be numbered. It should avoid arguing the case at length, reciting facts verbatim, or extensive quotation; it is a skeleton, not full argument.

What is the first stage in writing an opinion: analysing the client's problem?

Identifying the client's objective and the legal and factual issues, then determining the cause(s) of action or defence(s), the elements that must be proved, the available evidence for each element, and the gaps or weaknesses in the case.

What is the relationship between the elements of a cause of action and the evidence when analysing a problem?

Each cause of action has legal elements that must each be established. Analysis matches available evidence to each element, identifying which are proved, which are in doubt, and what further evidence or investigation is required.

What is the recommended overall structure of a written opinion?

A clear opening stating the issue and conclusion, followed by reasoned analysis of each issue (law applied to facts), advice on evidence and next steps, and a concise summary of the advice/next steps. The barrister advises, gives an opinion, and does not sit on the fence.

Why should an opinion state its conclusion early rather than building suspense?

Because the client and instructing solicitor need the bottom line (the advice and prospects) first. Stating the conclusion up front, then giving reasons, mirrors good legal writing and serves the reader's purpose, unlike a narrative that withholds the answer.

What does it mean to 'advise' rather than merely 'discuss' in an opinion?

An opinion must reach and express a clear view on the merits and recommend a course of action. Discussing arguments without committing to a conclusion ('fence-sitting') fails the client, who needs a definite recommendation on which to act.

How should prospects of success be expressed in an opinion?

Realistically and where appropriate in terms of likelihood (e.g. 'a strong claim', 'better than even', 'poor prospects'), justified by the strength of the evidence on each disputed element, so the client can make an informed decision on litigation risk.

What is the proper role of legal authority in an opinion or skeleton argument?

Authority is cited to support a proposition of law where it is genuinely in issue, using the most authoritative and relevant case or statute. The legal principle should be stated and applied to the facts; authorities are not cited for uncontroversial propositions.

What is the difference between binding and persuasive authority for the purpose of constructing legal reasoning?

Binding authority (from a court higher in the hierarchy on the same point) must be followed. Persuasive authority (e.g. obiter dicta, lower or foreign courts, dissents) may be relied on but does not compel a result; reasoning should prioritise binding authority.

What logical structure underpins sound legal reasoning in an opinion (the IRAC-type approach)?

Identify the Issue, state the relevant Rule/law (with authority), Apply the law to the material facts, and reach a Conclusion. Each issue is reasoned through in turn so the advice flows logically from law applied to fact.

When using authority, why must a barrister apply the case to the facts rather than merely citing it?

Because the value of an authority lies in its ratio applied to the client's specific facts. Citing a case without showing how its principle governs (or is distinguished from) the present facts gives no real guidance and weakens the reasoning.