PART 2
Civil litigation

59
Chapter 6 Injunctions
Learning Objectives
By completing the exercises in this chapter you will be able to:
 Determine appropriate terms and vocabulary for an injunction order in compliance with
your client’s instructions
 Consider appropriate grammar including modal verbs and tenses
 Appreciate the legal aspects of an injunction order
 Consider and understand the effect of a prohibitory injunction order
 Consider and draft a prohibitory injunction order on behalf of a client
Introduction
An injunction is a court order requiring a party to do (or prohibiting a party from
doing) a particular act. Some injunctions are required extremely urgently if they are
to be effective. There is also sometimes a need to obtain an injunction in secrecy.
This need will arise where giving notice of the application to the party the injunction
is being sought against would be likely to defeat the purpose of obtaining the
injunction. In such situations the injunction application can be made to court without
providing notice of the application to that other party.
Drafting injunction orders
When applying for an injunction order it is usual practice to draft the order you are
asking the court to grant. This draft order can then be produced to the Judge to indicate
the terms of the injunction order you are seeking on behalf of your client. We
shall draft such an order shortly, but first let us consider a few ‘good practice’ points
for drafting injunction orders.
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GOOD PRACTICE GUIDANCE FOR DRAFTING INJUNCTION ORDERS
The wording of an injunction order requires careful thought. It is necessary to state clearly and
precisely what the party the order is being made against (termed the ‘Respondent’) may do,
must do and/or must not do. There must not therefore be any uncertainty as to the meaning
of the terms of the injunction.
If there is any ambiguity in your description of what the Respondent is being prohibited from
or compelled to do then this may provide the Respondent with a legal ‘loophole’. This could
defeat the intended purpose of the injunction. (For example, by enabling the Respondent
to continue doing something which the injunction was specifically intended to prevent the
Respondent from doing.) That is why it is crucial that the terms you draft are sufficiently precise
in meaning to ensure that the injunction is legally ‘watertight’.
Nowadays the court expects the draft order to be written in plain English rather than archaic
legal language or ‘jargon’. Often the Respondent being served with an injunction will be an individual
who is not a lawyer. The terms setting out what he or she is being ordered by the court
to do or not to do must therefore be readily understandable by a layperson (particularly since
failure to comply with an injunction results in the defaulting party being in contempt of court).
Exercise 1 – reading
Facts pattern
You are now a partner in the law firm named Stringwood & Evans, located at 18
Bond Street, London, W1 1KR (telephone number 020 7538 2892). Thomas Shapiro,
Managing Director of Travelgraph Limited, has consulted you. (This is the same
client who provides you with instructions in Chapters 1 to 4 of the Business Law
and Practice Section.) Thomas Shapiro explains that Kadir Salleh, a former director
of Travelgraph, left the company last month. Shapiro and his fellow directors at
Travelgraph are very concerned however because Kadir Salleh is about to join a
competitor called Worldlink Limited.
Worldlink Limited is a major competitor of Travelgraph, their premises also
being in the city (only a few miles away in fact from Travelgraph’s office at 44
Princess Diana Walk, South Kensington, London, W2 3SL). Thomas Shapiro has
also discovered that Worldlink Limited intend to publish a new series of travel
guides of major world cities using computer files belonging to Travelgraph. Kadir
Salleh had access to these files in the course of his previous employment with
Travelgraph. Thomas Shapiro is furious to now learn that Salleh has retained
possession of these and that he has disclosed all this confidential material and
information to Worldlink Limited.
Thomas Shapiro shows you a page from Kadir Salleh’s service agreement with
Travelgraph, indicating valid restrictive covenants preventing Kadir Salleh for a period
of 12 months from:
 Working for a competitor
Part 2  Civil litigation
 Disclosing confidential information acquired by him in the course of his employment
with Travelgraph (including computer files) to Worldlink Limited or any other party
Thomas Shapiro now therefore wants you to obtain an injunction on behalf of Travelgraph
Limited against Kadir Salleh to enforce these terms, thereby preventing
Salleh from:
 Commencing work with Worldlink Limited
 Disclosing confidential information (including computer files acquired by him in
the course of working for Travelgraph Limited) to Worldlink Limited or any other
party
Assume that this application will be presented to the High Court in London tomorrow
(25 February 2007). Now read the following relevant excerpt from Kadir Salleh’s service
agreement with Travelgraph Limited which Thomas Shapiro has handed to you.
Chapter 6  Injunctions
61
The following is a precedent for a suitable type of injunction order. Complete the drafting of
the injunction to comply with your client’s instructions by:
1. deleting clauses in square brackets within the draft as appropriate
2. completing the blank spaces using relevant information from the text above as well as by
selecting appropriate entries from the following panel
Exercise 2 – drafting

EXTRACT FROM KADIR SALLEH’S SERVICE AGREEMENT
WITH TRAVELGRAPH LIMITED
CONFIDENTIALITY
In order to protect the confidentiality of the Company’s affairs, business
and/or intellectual property rights, the Sales Director hereby agrees not to disclose
to any other party during the course of his employment or thereafter any
confidential information (including in electronic form) relating to the Company
nor to use any such information in any way for any purpose following
termination of employment with the Company. This restriction is to remain
valid for a period of 12 months from termination of the Sales Director’s employment
with the Company.
RESTRAINT OF TRADE
The Sales Director hereby covenants with the Company that he shall not for a
period of 12 months following termination of employment with the Company
either directly or indirectly engage in, be involved in or employed by any activity
or business in competition with the Company.
Phrases for inserting in Draft Injunction Order
Contempt of Court Solicitor
Order to the Court
Respondent set aside this Order
sent to prison Respondent shall pay the Applicant
confidential information relating to Travelgraph Applicant’s
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DRAFT INJUNCTION ORDER
IN THE HIGH COURT OF JUSTICE Claim No. 2007 HC 4045
QUEEN’S BENCH DIVISION
MR JUSTICE JACKSON
Date ___________
BETWEEN:
(1) Applicant
And
(2) Respondent
DRAFT ORDER FOR AN INJUNCTION
IMPORTANT
NOTICE TO THE RESPONDENT
[1] This Order [prohibits you from doing] [obliges you to do] (3) the acts set out in this
Order. You should read it carefully. You are advised to consult a (4) as
soon as possible. You have a right to ask the court to vary or (5) .
[2] If you disobey this Order you may be found guilty of (6)
and may be (7) or fined or your assets may be seized.
Upon hearing Counsel for the Applicant and Counsel for the Respondent,
IT IS ORDERED that:
Chapter 6  Injunctions
63

THE INJUNCTION
1. For a period of 12 months commencing from 25 February 2007 the (8)
must not: (i) Enter into or continue in the employment of (9); (ii)
Divulge to (10), their officers, employees and/or agents or to
any other person or entity any computer files(s) or (11).
COSTS OF THE APPLICATION
2. The (12) the costs of this Application.
VARIATION OR SETTING ASIDE OF THIS ORDER
The Respondent may apply (13) at any time to vary or set aside this
(14) but if he wishes to do so he must first inform the (15)
Solicitors in writing at least 48 hours beforehand.
NAME AND ADDRESS OF APPLICANT’S SOLICITORS
The Applicant’s Solicitors are:
Name: (16)
Address:
Telephone Number:
All communications to the Court about this Order should be sent to Room E15 Royal Courts of Justice,
Strand, London, WC2A 2LL quoting the case number. The office is open between 10 am and 4.30 pm
Monday to Friday. The telephone number is 020 7936 6148 or 6336.
Language practice
Answer the following questions relating to the above text on injunction orders:
1. What is a ‘legal loophole’?
2. What is meant by ‘legally watertight’?
3. What does ‘jargon’ mean?
4. What is meant by ‘a(chǎn) layperson’?
5. What is meant by ‘being in contempt of court’?
6. What is a ‘restrictive covenant’?
7. Under the heading ‘Notice to Respondent’ in the draft order for an injunction the Respondent
is warned that if he does not comply with the terms of the Order then ‘... your assets
may be seized’. What does this mean?
Exercise 3 – comprehension
In the sentence ‘You must not engage in employment with a competitor within a radius of 20
miles for a period of 12 months’ the word must is a modal verb. Complete the following sentences
by inserting an appropriate modal verb in each blank space.
1. The Respondent apply at any time to set aside this order.
2. You not work for a competitor for 12 months.
3. If you do disobey the injunction order your assets be seized.
4. A worker on a building site wear a safety helmet.
Exercise 4 – modal verbs
Part 2  Civil litigation
Select the correct form of the present tense, past perfect or past simple in each blank space
below to complete these sentences.
1. Kadir Salleh (leave) Travelgraph Limited last month.
2. He (join) Travelgraph Limited in 1998.
3. He (work) for Worldlink for a month.
4. After he (receive) the injunction he (consult) a solicitor.
Exercise 5 – tense review
Injunctions
 Injunctions are court orders requiring a party to do or refrain from doing something
 A court hearing will be required prior to an injunction being granted
 Injunction applications are almost invariably of an urgent nature
 Injunction applications outside office hours may be considered by a Judge via telephone
 Typical injunction orders include orders preventing:
1. individuals from contacting another person (such as where the Respondent has
previously issued physical threats to or assaulted that other person)
2. employees from working for a competitor
3. employees divulging an employer’s trade-secrets to a competitor
 Respondent is entitled to three days’ notice of injunction application prior to court
hearing the application unless secrecy is essential or matter extremely urgent (e.g.
applicant is in imminent danger of physical injury)
 An injunction order granted by the court before trial is termed an interim injunction
 A prohibitory injunction prohibits a party from doing something
 A mandatory injunction compels a party to do a specific act
Law notes
64
Modal verbs
Modal verbs can be used to express the speaker’s or writer’s standpoint, viewpoint or attitude
to the matter being referred to in the sentence. (Such as for instance where the
matter relates to an instruction, possibility, probability or requirement.) Thus in the injunction
order the modal verbs must and may define what the Respondent must, may or may
not do.
Modal verbs are placed before the subject in order to ask a question, otherwise being
placed prior to the main verb. Modal verbs have only one form and are followed by the infinitive
without ‘to’.
Modal verbs include words such as:
must; can; should; could; may; might; will; would; shall
For instance, to express:
Obligation – must; shall
Ability – can; should
Probability – will; may; might
Permission –may; can
Suggestion – should
Request – would; might
Tense review
Past simple
The past simple is used for actions regarded as completely finished. It is formed by
adding ‘ed’ for regular verbs, as for instance in walked. We use the past simple when we
are talking about completed periods in time. E.g. ‘The Judge passed sentence’.
Present perfect
The present perfect is formed by has / have + past participle. The present perfect is used
to connect the present with the past and is often used with just; since; ever; yet.
E.g. ‘The Judge has just finished summing up the case’.
Past perfect
This tense is formed by had + past participle and is used to refer to an action completed
prior to another action in the past. ‘Time’ words linked with the past perfect include
when; after; before; as soon as. E.g. ‘After the jury had heard the evidence they retired to
deliberate on the verdict’.
Grammar notes
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Chapter 6  Injunctions
66
Chapter 7 Breach of contract claim
Learning Objectives
By completing the exercises in this chapter you will:
 Consider modern equivalent language for traditional legal terms
 Practise drafting aimed at ensuring clarity of meaning
 Consider relevant grammar including relative clauses and relative pronouns
 Draft a letter of claim
 Develop word skills specific to drafting Particulars of Claim
 Amend a precedent in order to draft Particulars of Claim
Introduction
The law of contract (‘contract law’) is an area of civil law (as opposed to criminal
law). Contract law is concerned with legal rights and remedies resulting from agreements
entered into between individuals or companies.
A contract is therefore basically a promise by one party to another which the law
recognises as enforceable. A breach of contract arises when one party alleges that
another party to an agreement has in some way failed to comply with the terms of
the agreement. Terms of an agreement may be express (i.e. specifically written or
stated) or implied. Implied terms are mainly created as a result of established caselaw
or statute. (For example when a business enters into a contract for the sale of
goods the Sale of Goods Act 1979 implies a term into the contract that the goods will
be of satisfactory quality.)
The party commencing a breach of contract claim is termed the Claimant. The
party the claim is brought against is the Defendant. A breach of contract claim is
commenced by issuing proceedings in court (usually the County Court or the High
Court for higher value claims). This is sometimes referred to as ‘bringing an action’.
The usual remedy which the court may order for breach of contract is damages.
Damages means monetary compensation, usually intended to put the party not at
fault in the same position as if the contract had been performed as agreed. (Another
remedy the court may grant in certain cases is an injunction, considered in Chapter 6.)
Chapter 7  Breach of contract claim
67
Language practice
Answer the following questions relating to the above text on contract law.
1. State two types of contract you can think of.
2. Is contract law an area of criminal or civil law?
3. What is meant by the terms of a contract?
4. What are the two main types of contract terms?
5. What is meant by case-law?
6. What is a statute?
7. Is the party bringing a claim the Claimant or Defendant?
8. What do you consider is meant by the implied term of satisfactory quality?
Exercise 1 – comprehension
Thomas Shapiro, Managing Director of Travelgraph Limited, is obviously impressed with your
abilities, having again come to see you. This time he requires your assistance concerning a
matter involving contract law.
In particular, Thomas Shapiro explains to you that Travelgraph Limited purchased two printing
machines several months ago at a cost of £45,000 each. Both Travelgraph and the seller
signed a written contract on 1 August 2007. The machines were then delivered to Travelgraph’s
premises on 7 August 2007. These printing machines were purchased for printing the
maps and tourist guides which Travelgraph publishes and sells. Thomas Shapiro is very disappointed
with these printing machines however since each one is only capable of printing 50
pages per minute. This is half the printing rate that the company which manufactured and sold
these machines claimed. (There is an express term in the contract signed on 1 August 2007
stating that each machine would be capable of printing 100 pages per minute.) Travelgraph
estimates that it will lose profit in the sum of £200,000 per year from the date of purchasing
the machines as a result of this. Thomas therefore wants you to write a letter on behalf of
Travelgraph to the company which manufactured and supplied the machines (called ‘Matrix
Printers Limited’). This is for the purpose of providing notice to Matrix Printers Limited that
Travelgraph intends to issue legal proceedings in court for breach of contract unless Matrix
Printers offers compensation to Travelgraph for loss of profit.
Complete such a letter to Matrix Printers Limited by filling in the blank spaces in the following
letter, using the selection of words and phrases in the panel.
Exercise 2 – letter writing
Drafting (i)

Words and phrases for inserting in letter
our instructions contract
breach of contract express term
legal proceedings proposals to compensate
satisfactory proposals act on behalf of
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Chapter 7  Breach of contract claim
69
Old-Fashioned Language Equivalent Modern Language
action claim
anton piller order search order
discovery disclosure
ex parte without notice (to other parties)
inter-partes hearing hearing with notice (to other party)
interlocutory hearing interim (as opposed to final) hearing
interrogatory request for further information
leave permission
mandamus order mandatory order
mareva order (or injunction) freezing injunction
Continued
Legal proceedings
Matrix Printers Limited has not replied to the letter you prepared intimating the
claim (known as a letter of claim). It is now necessary therefore to commence legal
proceedings. In order to do so it is necessary to draft two documents in particular.
These are:
A Claim Form
Particulars of Claim
Both of these documents are known as statements of case. (Certain other court documents
are also statements of case and we will consider those later in this Litigation
Section.) ‘Statements of case’ is a relatively new legal term for these court documents,
which were previously known as ‘pleadings’. You are likely to find that
statements of case often contain a certain amount of old-fashioned language. This
old-fashioned style of language has traditionally been used by lawyers when drafting
statements of case in order to achieve precision of meaning.
There have however been recent reforms encouraging greater use of plain English
by lawyers. In particular, a procedural code known as the ‘Civil Procedure Rules’
has introduced some new terminology. You should therefore use plain English
whenever possible when drafting statements of case, while still ensuring that the
meaning of your drafting is precise and unambiguous.
Arange of words in legal English sound rather old-fashioned (such as ‘ex-parte’ and
‘pleading’). Some of these words are still used, having proved through time to be particularly
apt and descriptive, thereby having become standard or ‘stock’ phrases. You
should however always consider carefully whether there is a plain English alternative.
The following table provides some examples. The first column lists words and
phrases which have traditionally been used in statements of case over many years.
The second column of the table provides a suitable modern English equivalent for
the old-style words and phrases in the first column.
Part 2  Civil litigation
prohibition order prohibiting order
request for further and better particulars request for further information
setting down for trial listing (scheduling) for trial
specific discovery specific disclosure
subpoena witness summons
summons (to commence proceedings) claim form
summons for directions case management conference
thereafter / thereinafter subsequently / then
therein contained within
In the table below, the first column lists some further examples of old-fashioned language
which you are still likely to see today in some legal documentation. The second column provides
a selection of suitable alternative modern English words and phrases. Match each expression
in the first column with its equivalent in the second column. By way of illustration the
first one is done for you.
Exercise 3 – vocabulary
Old-Fashioned Language Equivalent Modern Language
aforesaid in private
aver / plead in public
in camera claim form
in open court stated previously
save that / save insofar noted below
Plaintiff claimant
pleading contend / allege
prescribed by provided by / indicated by
undernoted statement of case
writ except that
The following document is a claim form. It has been partially completed on behalf of your
client. Complete the claim form by entering the correct word (selected from the panel below)
in each of the shaded areas of the claim form.
Exercise 4
Drafting (ii)
70
Chapter 7  Breach of contract claim
71
Claimant claims contract
Matrix Printers Limited recover damages
The following is a precedent for drafting suitable Particulars of Claim for issuing in court on behalf
of Travelgraph along with the claim form you have now completed. Lawyers often use
precedents to assist with drafting statements of case. A precedent in this sense means a
document drafted for a previous and similar type of legal action which is suitable as a ‘template’
for the document currently required. Always remember however that a precedent will
have to be amended to suit the particular circumstances of the case you are working on.
Draft Particulars of Claim suitable for your client’s purposes by making appropriate amendments
to the precedent below, selecting the correct words or phrases from the alternatives provided
in the square brackets. This requires you to delete the words or phrases which are not correct.
You will need to take account of the information provided throughout this chapter in order to
complete this exercise. By way of illustration the first two in the heading of the Particulars of
Claim have been amended for you. (You should assume that today’s date is 8 February 2008.)
Exercise 5
PARTICULARS OF CLAIM PRECEDENT
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION CLAIM No. 2007 HC 1829
TRAVELGRAPH LIMITED [Claimant]
AND
MATRIX PRINTERS LIMITED [Defendant]
PARTICULARS OF CLAIM
1. The [Parties / Claimant / Defendant (1)] is and was at all material times a company
carrying on business as publishers of maps and tourist guides. The [Claimant / Defendant
/ Parties (2)] at all material times carried on business as a manufacturer and
seller of printing machines.
2. By a [arranged contract/ oral contract / written contract (3)] (‘the Contract’) entered
into between the Claimant and the Defendant and signed by both parties on [17
September 2007 / 18 January 2005 / 1 August 2007 (4)], the Defendant in the course
of its business agreed to manufacture and sell to the Claimant and the Claimant
agreed to buy from the Defendant 2 Ultra-Print 123 Series printing machines at a
price of [£45,000 / £10,000 / £80,000 (5)] each.
3. The Contract included an [implied term / actual term / express term (6)] that the
machines would each be capable of printing at a rate of [90 / 100 / 200 (7)] pages
per minute using A4 size paper.
4. The Contract included an [applied term / implied term / implicit term (8)] that the
machines would be of satisfactory quality.
5. Pursuant to the [action / contract / claim form (9)], on 7 August 2007 the Defendant
delivered to the Claimant two printing machines (‘the delivered machines’) which
the [Claimant / Defendant / Respondent (10)] installed at its registered office.
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Chapter 7  Breach of contract claim
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6. [In compliance with / Pursuant to / In breach of (11)] the [omitted / aforesaid / disputed
(12)] express and / or implied term, neither of the delivered machines were
capable of printing at a rate exceeding [50 / 120 / 100 (13)] pages per minute.
7. As a result of the matters set out above, the Claimant has suffered [loss and damage/
interest / compensation (14)].
PARTICULARS OF LOSS
Loss of profit
(a) From 7 August 2007 until 8 February 2008:
(i) estimated receipts from warranted output £200,000
(ii) actual receipts £100,000
£100,000
(b) Continuing from 9 February 2008 at the following annual rate:
(i) estimated receipts from warranted output £400,000
(ii) estimated actual receipts [£400,000 / £500,000 / £200,000 (15)]
£200,000
8. Further the Claimant claims interest [pursuant to / contrary to / corresponding to
(16)] section 35A of the Supreme Court Act 1981 on the amount found to be due to
the [Claimant / Respondent / Defendant (17)] at such rate and for such period as
the Court thinks fit.
AND the Claimant claims:
(1) [Money / Damages / Satisfaction (18)]
(2) Interest pursuant to section 35A of the Supreme Court Act 1981 to be assessed.
STATEMENT OF TRUTH
The Claimant believes that the facts stated in these Particulars of Claim are true.
Dated this 8th day of February 2008.
Stringwood & Evans, Solicitors, of 18 Bond Street, London.
Solicitors for and on behalf of the Claimant.
Complete the following sentences by inserting the correct pronoun in each blank space from
the panel below. (Note that some words may be applicable more than once in this exercise
while other pronouns in the panel may not be applicable to any of the blank spaces.)
Exercise 6 – relative pronouns
when which that who whom

1. The remedy _________ the court may grant for breach of contract is damages.
2. The lawyer wrote a letter to the company _________ manufactured the machines.
3. The individual against _________ a claim is commenced is known as the Defendant.
4. Thomas Shapiro, _________ is the Managing Director of Travelgraph Limited, was disappointed
with the printing machines.
Part 2  Civil litigation
74
Contract law
The Particulars of Claim should set out clearly the fundamental details of a breach of
contract claim. As illustrated in the example of a Particulars of Claim contained in this
chapter, these details should include:
Title of proceedings
Case Number [provided by the court when the proceedings are issued]
Court [here it is the High Court, Queen’s Bench Division]
Full Names of each Party to the Proceedings
Status of each Party [i.e. whether Claimant or Defendant]
The contract
Date [1 August 2007]
Parties [Travelgraph Limited and Matrix Printers Limited]
Form [i.e. whether written or oral]
Subject Matter [i.e. what the claim is for]
Consideration [i.e. a promise to confer a benefit on the other party or to incur a detriment.
A contract is usually unenforceable in law unless consideration exists. This is to
ensure that all parties to the contract are providing something in return for what they
are receiving. Here, as is commonly the case, there is consideration in the form of the
price being paid]
Terms of the contract [e.g. price agreed etc. Note that terms of the contract which are
specifically material to the claim are set out in paragraphs 3 and 4. Note that it is
usual drafting practice to set out express terms before implied terms].
Breach of the contract
It is necessary to indicate the term(s) breached, the date(s) and particulars of the
breach(es), i.e. what act(s) or omission(s) by the Defendant are being alleged by the Claimant
as having amounted to breach of contract. (These details are set out in paragraph 6.)
Loss and damage
It is also necessary to particularise the amount and nature of the loss and damage
which it is alleged resulted from breach of contract. (These details are set out here in
paragraph 7.) Even if the court determines that there has been breach of contract, the
Claimant also has to establish what is termed causation. Causation is a legal concept
whereby only losses caused as a consequence of the breach are recoverable from the
Defendant. Such losses are sometimes referred to as having a causal link with the
breach. Note that in this example past losses are set out first (i.e. losses to date)
Law notes
followed by future losses, the latter being claimed as an annual sum. This is common
drafting practice in a case such as this.
Remedies
Here the common remedies for breach of contract are indicated (paragraph 8), i.e. damages
and interest.
Statement of truth
All statements of case (including claim forms and Particulars of Claim) must contain a
statement of truth in wording similar to that indicated here. This will usually be signed by
the party whose statement of case it is (i.e. Travelgraph Limited in this case). Note that
where the party is a company, the statement of truth would be signed on behalf of the
company by a person holding a senior position within the company (such as a director or
company secretary) or by the company’s lawyer.
Chapter 7  Breach of contract claim
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Relative clauses
Relative clauses provide a mechanism for providing additional information in a sentence
concerning a matter, object or person already referred to in the sentence. E.g. in the sentence
‘A contract is basically a promise by one party to another which the law recognises
as enforceable’ the pronoun which is used to introduce a relative clause.
There are two types of relative clauses: defining and non-defining. Defining relative
clauses are essential to the understanding of a sentence whereas non-defining ones are
not. In defining relative clauses commas are not used to separate the relative clause
from the rest of the sentence.
E.g. ‘Law is a subject which many people find interesting’. (Defining clause.) ‘Tony Blair, who is a
trained lawyer, has been Prime Minister since 1997’. (Non-defining clause.)
In relative clauses:
Who is used to refer to people and which to things. In defining relative clauses that can
generally be used in place of any other relative pronoun except whose. Note that whom is
used formally as the object in a sentence.
When the relative pronoun is the subject of a relative clause it cannot be omitted from
the sentence, who, which or that being required within the sentence.
E.g. ‘He’s the solicitor who drew up the contract.’ (Who cannot be left out.)
If the relative pronoun is the object of a relative cause it can be omitted.
E.g. ‘He’s the solicitor I saw.’ (Note that ‘whom’/‘who’ has been omitted.)
Note that if the subject is a person then which cannot be used. Conversely, if the subject
is a neuter object then who cannot be used. Whose is used as a relative pronoun instead
of using a possessive form. E.g. ‘Barristers spend most of their time in court. Their work
mainly involves court advocacy.’ Whose could be used to re-phrase this as ‘Barristers
whose work mainly involves court advocacy spend most of their time in court.’
Grammar notes
76
Chapter 8 Road traffic accident!
Learning Objectives
By completing the exercises in this chapter you will:
 Practise using language appropriate to legal correspondence and court proceedings
including collocations
 Practise grammar relevant to a civil case including active and passive verb structures
 Analyse the facts of a case
 Enter into legal correspondence on behalf of a client
 Review present and past tenses
A tort claim in negligence
A ‘tort’ is a breach of a duty imposed by law under what is termed ‘the law of tort’.
The law of tort imposes a variety of duties on all of us in our daily lives, covering a
variety of situations. In this chapter we consider a particularly common tort, the tort
of negligence. The purpose of the tort of negligence is to provide compensation for
harm suffered as a result of another person’s fault. For instance in circumstances
whereby someone has caused an accident or made a mistake (such as professional
negligence by a doctor or indeed by a lawyer!).
The following criteria must all be met in order to establish that the fault amounts
to the tort of negligence (normally referred to simply as ‘negligence’):
1. The proposed Defendant owed a duty of care to the Claimant. For instance in the
case we look at in this chapter the duty relied upon is one firmly established by
case-law, namely that a road user owes a duty of care to other road users.
2. The proposed Defendant breached the duty of care.
3. The damage was caused as a consequence of the Defendant having breached the
duty of care. (In other words but for the Defendant’s actions the Claimant would
not have been injured or suffered loss.) This principle is known as ‘causation’.
If the person is acting in the course of his employment at the time of committing the
negligent act then the employer is also liable for injury or loss caused as a result of
the negligence. This concept is termed ‘vicarious liability’.
Chapter 8  Road traffic accident!
77
You have been consulted by a new client named Nicholas Tiessen. Mr Tiessen has been
injured in a road traffic accident. You have agreed to act for him in pursuing compensation on
his behalf for the injuries he received in the accident. This will involve issuing legal proceedings
against the driver responsible for the accident. Firstly however you are required to send
the letter on page 74 to your client confirming your instructions.
Read this letter then consider and state whether each of the following statements are true
or false based on the contents of the letter. Explain your answer, using the text of the letter to
support it.
1. The writer of the letter is declining to act for Nicholas Tiessen.
2. The writer is a solicitor within the banking department of Stringwood & Evans.
3. The firm has a complaints handling procedure.
4. To succeed in his claim it is necessary for Nicholas Tiessen to prove liability beyond all reasonable
doubt.
5. There is a good chance that Nicholas Tiessen’s claim will be successful.
6. General damages include loss of earnings up to the date of the trial.
Exercise 1 – language practice
TASK 1
Good letter writing involves being concise. You should therefore think carefully whether a particular
word could be used in place of a clause. Enter a word in the second column below
which has the same meaning and could be used as an alternative to each of the phrases in
the first column. The first entry has been completed for you by way of illustration.
Exercise 2
Compound Simple Form
in the event that if
at a later date
as a consequence of
until such time as
similar to
at that particular time
prior to
in close proximity to
TASK 2
Now re-write the following sentence more succinctly.
American courts award damages in personal injury cases which are higher than English courts
award when determining damages in the course of making judgements in personal injury cases.

78
STRINGWOOD & EVANS
18 Bond Street
London
United Kingdom
Tel. No: +44 020 7538 2892
Mr N. Tiessen
27 London Road
Kingston Upon Thames
Surrey
KT4 2LT 30 November 2007
Dear Mr Tiessen,
Accident on 21st September 2007
Further to our meeting yesterday I write to confirm that I will act for you in pursuing a
claim against Mr Matthew Gluck and his employer concerning the accident on Friday 21st
September 2007. I am a solicitor within the Litigation Department of this firm and will be
responsible for the day-to-day work on your file. My secretary, Jennifer Henderson, will be
assisting me and can be contacted in the event that I am unavailable at any time you
contact this office.
I strive to keep all my clients fully informed and updated concerning the progress of
their cases. If you require any clarification of any matter or have any queries at any time
however please do not hesitate to contact me.
This firm aims to provide an efficient service and I am confident that we will do so in
your case. If however you have any complaints concerning the service being provided
that are not resolved to your satisfaction by myself then any such complaint should be
addressed to the senior partner, Mrs Christine Stringwood.
If your claim is successful, with liability being established on the balance of probabilities
against the Defendants, then you will be entitled to damages. On the basis of the evidence
you have provided it is my opinion that your claim has good prospects of success.
It may therefore prove possible to negotiate a settlement with the other parties’
legal representatives.
There are two main types of damages as follows:-
1. General Damages – in other words compensation for pain, suffering and loss of amenity.
2. Special Damages – meaning actual financial losses incurred up to the date of trial
(including for instance loss of earnings etc.).
I will write to you again as soon as there are any further developments with your case.
Yours sincerely,
A. Lawyer
Part 2  Civil litigation
Chapter 8  Road traffic accident!
79
Active and passive verb structures
The active voice
Using the passive verb structure when it is not essential is likely to result in your
writing being too formal. This is because it tends to de-personalise the individuals
being addressed or referred to. For example:
When you arrive you will be met by my secretary. You will be taken to my office, where
the conference with counsel will be held.
Communicating this in the active voice is friendlier and more likely to put your
client at ease. For example:
My secretary, Jennifer, will meet you when you arrive and take you to my office, where we
will be holding the conference with counsel.
Similarly, the Particulars of Claim in this chapter state that the Ford Galaxy motor
car ‘... was being driven by the First Defendant’. This is an example of the passive construction
in English and is used as standard practice in court documents and other
formal legal documentation. The auxiliary ‘be’ and the past participle are used. (The
passive can be used with any tenses and modal verbs.)
For correspondence purposes however this could be re-written in the active as ‘...
the First Defendant was driving the car’. (Here the subject in the passive becomes the
object of the active verb.)
Change the following sentences from a passive to an active construction.
1. The accident was caused by negligent driving.
2. A whiplash injury was diagnosed by a consultant orthopaedic surgeon.
3. The Claimant is being treated by a physiotherapist.
4. The extent of damage to the car will be assessed by a local garage.
Exercise 3 – verb structures
Complete the following sentences by entering the correct present or past form of the words in
brackets in the blank spaces.
1. I (have) lunch at the moment.
2. Yesterday I (drive) along Regent Street when I had an accident.
3. James (work) full-time at present.
4. At two o’clock this afternoon the aircraft (land) at Luton.
Exercise 4 – tense review
Part 2  Civil litigation
Legal proceedings have now been issued on behalf of Nicholas Tiessen. The following
Particulars of Claim set out details of the claim. Read the Particulars of Claim carefully then
complete the following tasks.
Exercise 5
IN THE CENTRAL LONDON COUNTY COURT CASE NO.
BETWEEN:
NICHOLAS TIESSEN CLAIMANT
And
MATTHEW GLUCK FIRST DEFENDANT
And
LONDINIUM DELIVERY COMPANY LIMITED SECOND DEFENDANT
PARTICULARS OF CLAIM
1. At about 4.00 p.m. on Friday 21 September 2007 the Claimant was driving his
Honda Accord registration number HL16 GNT along Oxford Street, London, in an
easterly direction. At all material times the Second Defendant was the owner of a
Ford Galaxy motor car registration number FT23 FLK, which was being driven by
the First Defendant as servant or agent for the Second Defendant.
2. A collision occurred when the said Ford motor car, travelling in a northerly direction
along Regent Street, drove into the Claimant’s vehicle at the junction between
Oxford Street and Regent Street. The said junction is a crossroads controlled by traffic
lights which were showing green in favour of the Claimant.
3. The collision was caused by the negligence of the First Defendant, acting in the
course of his employment.
PARTICULARS OF NEGLIGENCE
The First Defendant was negligent in that he:
(a) failed to keep any or any adequate lookout;
(b) failed to observe or heed the presence and progress of the Honda Accord motor car;
(c) drove too fast;
(d) drove into collision with the Honda Accord motor car when, by the exercise of
reasonable driving skill and care, such collision could have been avoided.
(e) failed to stop, steer, manage or control his motor vehicle in such a way as to
avoid a collision;
(f) failed to sufficiently apply the brakes of his said vehicle in time or at all.
The Second Defendant is negligent by virtue of vicarious liability, being the
employer of the First Defendant and owner of the aforesaid Ford Galaxy motor
car registration number FT23 FLK.
4. By reason of the matters aforesaid the Claimant has suffered pain and injury, loss
and damage.
80
Chapter 8  Road traffic accident!
PARTICULARS OF INJURY
The Claimant, who was born on 18 March 1971, sustained the following injuries:
The Claimant, who was wearing a seatbelt, sustained injury to his neck. Hospital
treatment was required, the Claimant having been taken by ambulance to Chelsea and
Westminster Hospital, Fulham Road, London. The Claimant was retained in hospital for
four days. Following medical examination a whiplash injury was diagnosed. The
Claimant was unable to return to work as a computer programmer for five weeks due to
continuing symptoms of neck pain, radiating to the right shoulder. This has necessitated
physiotherapy treatment, which has now alleviated the symptoms. Full particulars are
set out in the medical report of Mr Paulo Jarvis, consultant orthopaedic surgeon, dated
24 November 2007.
PARTICULARS OF SPECIAL DAMAGE
5. (1) Value of Honda Accord motor car damaged beyond repair £ 7,500
(2) Loss of earnings: 4 weeks at £1,000 per week £ 4,000
(3) Cost of ruined clothing as a result of accident (shirt and jacket) £ 200
(4) Cost of 12 sessions of physiotherapy at £25 per session £ 300
£12,000
AND THE CLAIMANT CLAIMS:
1. Damages not exceeding £50,000;
2. Interest pursuant to section 69 of the County Courts Act 1984.
STATEMENT OF TRUTH
The Claimant believes that the facts stated in these Particulars of Claim are true.
Dated this 2nd day of December 2007.
Stringwood & Evans, Solicitors, 18 Bond Street, London.
Solicitors for the Claimant
Tel. No. +44 020 7126 8983
TASK 1 –COMPREHENSION
Write out answers to the following questions.
1. Name the Defendants.
2. What make of car was your client driving?
3. On what date did the accident occur?
4. Where did the accident occur?
5. Where was Nicholas Tiessen taken immediately after the accident?

81
Part 2  Civil litigation
82
6. What is Nicholas Tiessen’s occupation?
7. How much income did Nicholas Tiessen lose as a result of the accident?
8. What is the total value of your client’s claim for special damages?
9. Why is it contended in the Particulars of Claim that the First Defendant’s employer is
vicariously liable for the accident?
10. Name one other type of accident you can think of which would conceivably involve
negligence.
Ford Galaxy
FT 23 FLK
Direction of travel
OXFORD
CIRCUS
OXFORD STREET
REGENT STREET
Diagram of Accident on Friday 21st. Sept. 2007.
Honda Accord
HL 16 GNT
TASK 2 – WRITING
1. Describe the accident in a few sentences, using your own words.
2. Briefly describe your client’s injuries, using your own words.
TASK 3 –ACTIVE AND PASSIVE
Imagine that you are about to appear in court. This is to make your submissions to the Judge
as to why you contend that the First Defendant was in breach of his duty of care towards your
client, the Claimant. Draft your submission in no more than 10 sentences, using the active
voice.
Chapter 8  Road traffic accident!
83
facts file privilege
witness accident evidence
out of court settlement case liability
damages of claim proposals statement
The first column lists the first parts of some commonly used collocations in legal English
which contain an adjective and noun or noun and noun. Complete each collocation by selecting
the correct words from the box below. By way of illustration the first entry is made for you.
Exercise 6 – adjective and noun collocations
car a c c i d e n t
legal
admissible
undisputed
client’s
independent
settlement
Now complete some commonly used collocations in legal English which contain a verb and
noun. By way of illustration the first one is done for you.
take a statement
settle the
award
settle
Exercise 7 – verb and noun collocations

Collocations
The English language contains a wide range of vocabulary. When we speak or write
in English therefore there are numerous possible word combinations from which to
choose. In legal English however it is standard practice to use a number of specific
combinations. Becoming familiar with such collocations is an effective way of building
your vocabulary.
Complete the following letter to the law firm acting for the Defendants, filling in the blank
spaces by selecting relevant phrases from those you have identified in Exercises 6 and 7.
Exercise 8 – letter writing (i)
84
Part 2  Civil litigation
admit
serve particulars
negotiate
STRINGWOOD & EVANS
18 BOND STREET
LONDON
W1 1KR
+ 44 020 7538 2892
Addison, Rais & Partners
18 Aldgate Crescent
London 16 December 2007
Dear Sir or Madam,
N Tiessen v M Gluck and Londinium Delivery Co. Ltd.
We note that you act on behalf of the Defendants in this matter. It appears clear from
the facts of the case that the First Defendant caused the [1]. We
have managed to [2] from an [3] which
appears to indicate clearly that liability will be established for negligence.
If the case proceeds to trial we are confident that the court will [4].
To avoid further unnecessary legal costs therefore we look forward to receiving your
[5] with a view to seeking to [6] of this case.
Yours sincerely,
Signature
Chapter 8  Road traffic accident!
Now imagine that you are a lawyer with Addison, Rais and Partners, the firm acting for the Defendants.
Write a letter in reply to the one you completed in Exercise 8, denying liability on behalf
of the Defendants. Use appropriate phrases from Exercises 6 and 7 in the course of completing
the letter.
Exercise 9 – letter writing (ii)
Look out for more collocations as you read through this book and come across further
legal materials. Also remember to use the glossary and a good dictionary if you are in any
doubt (such as Dictionary of Law, by L.B. Curzon). The list of collocations at the end of
this chapter will also assist you in further developing your legal English vocabulary.
The tort of negligence
A tort is a breach of a duty imposed by law. The purpose of the tort of negligence is to
compensate for harm sustained as a result of another’s fault. In order to succeed in a legal
action for negligence a Claimant must establish:
 A duty of care
 Breach of that duty of care
 Damage resulting from breach of that duty of care (causation)
Other torts include:
 Defamation – libel if defamatory comments about another are written or broadcast or
slander if spoken
 Misrepresentation – making false or misleading statements which induce someone to
enter into a contract
 Employer’s liability – a duty owed by an employer to employees to provide a safe system
of work
 Vicarious liability – liability imposed on an employer for torts by employees committed, in
the course of their employment
 Breach of various statutory duties – duties of care imposed by specific Acts of
Parliament, including for instance under the Health and Safety at Work Act 1974
Damages in tort
Damages in tort are intended to compensate the Claimant for the loss and/or injury sustained
as a result of the tort. In a personal injury case for instance (such as the one considered
in this chapter) damages consist of:
 General damages – monetary compensation to be assessed by the court, including:
compensation for pain and suffering; future medical expenses; continuing loss of
earnings etc.;
Law notes

85
 Special damages – specific financial loss incurred from date of injury to date of trial, including:
loss of earnings up to the date of trial; cost of repair of motor vehicle; medical
expenses up to date of trial etc.
Reduction in damages
A Claimant’s damages can be reduced by whatever extent the court considers appropriate
due to the concepts of:
 Contributory Negligence
Section 1 of the Law Reform (Contributory Negligence) Act 1945 provides that a person’s
compensation ‘... shall be reduced to such extent as the court thinks just and
equitable having regard to the Claimant’s share in the responsibility for the damage’.
In other words compensation is reduced to the extent which the court considers the
Claimant was personally to blame for his loss. Damages are often reduced for instance
in personal injury claims resulting from road traffic accidents (RTAs) if the
Claimant was not wearing a seatbelt.
 Mitigation
The law usually requires a Claimant to mitigate his loss. In other words the Claimant
must take all reasonable steps to reduce or obviate the loss sustained. For example:
John seeks compensation for loss of earnings as a result of being unable to continue
in the same employment as previously following a road traffic accident. He will be expected
to try to mitigate this loss, such as for instance by re-training or obtaining suitable
alternative work.
Part 2  Civil litigation
86
Passive structures
In the Particulars of Claim in this chapter it is stated that the Ford Galaxy ‘...was being
driven by the First Defendant’. This is an example of the passive in English and could be
re-phrased for spoken English as, ‘The First Defendant was driving the car’.
The object of the active verb becomes the subject in the passive.
The passive can be used with any tenses and modal verbs.
Tense review
Present continuous
The present continuous is used to relate events which are currently occurring and is
formed by using am / is / are along with the present participle. For example:
‘I am travelling along Regent Street and having an argument with my girlfriend.’
Past continuous
The past continuous tense is formed by was / were along with the present participle. It is
used to refer to an activity in the past at a particular time. For instance, Jason Garfinkle
Grammar notes
states in his witness statement (see chapter 9) that he ‘... was driving along Oxford
Street at approximately 4.00 pm’.
The past continuous tense can also be used with the past simple tense when an action
occurs whilst another event is simultaneously taking place. Thus:
While Jason was driving along Oxford Street he saw an accident.
Chapter 8  Road traffic accident!