#10147 - Defendant Submissions For Advocacy - Civil Litigation

Concisely identify the legal issues that the court is to decide (by reference to the applicant’s submissions) (r.24.2 CPR)

(Section 8.4 Advocacy Guide)

I would like to thank my friend for introducing me. Master, the Defendantsubmits there are two issues for you to decide today :

First, whether or not the Defendant can show a defence with a real prospect of success at trial. The defence is based on the fact that the Claimant breached its Contract with the Defendant.

Second, the Defendant submits that there are compelling reasons for the matter to proceed to trial, namely that this case is too technical to be disposed of in a summary way.

Master, the burden falls on the claimant to show that the Defendant is unable of successfully defending the claim. Master, it is my submission that my friend Mr/Mss___ has not even come close to discharging that burden. It is also my submission that the Defendant has indeed very good prospects of defending the claim.

Master, this morning I will be referring to the same documents as my friend.

By reference to the documents identify relevant facts and law (substantive law relevant to the dispute)

(Section 8.5 Advocacy Guide)

[respondent’s submissions highlighted in yellow

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Succinctly refer to relevant procedure (r.24.2 – 4 things)

(Section 8.6 Advocacy Guide)

i.e. :

• the rule number;

• What that part(s) of the rule you are relying on actually provides for;

• Whether or not it is a matter of the judge’s discretion;

• Where the burden lies. (Section 7.6 Advocacy Guide)

Concluding submissions opposing the application. Compare your client’s strongest evidence against the weakest parts of your opponent’s case

(Section 8.7 Advocacy Guide)

Master, I submit that such burden has not been discharged for the following reasons:

First, the Claimant has blatantly admitted that she has breached clause 6 of the contract by advertising on a national scale. This allowed the Defendant to terminate the contract under clause 7 of the contract.

Second, it appears that the Claimant was unfamiliar with the Contract terms as she requested the 30,000 to be returned and that she advertised in a manner that the Defendant expressly requested her not to. The Claimant was under no duress or undue influence as to entering into the Contract.

Third, the Defendant was clearly reasonable in allowing local advertisement in the surrounding area and website. Not only does this show that she wanted to promote her – quote “small concert” – but also that she happily complied with clause 5 of the contract.

Fourth, there is an issue as to the interpretation of the terms of the contract which can only be dealt with in trial.

For these reasons, as a matter of common sense, the Claimant has not discharged its burden. Master, unless I can assist you further, those are my submissions.

Concisely identify the legal issues that the court is to decide (r.25.13 CPR)

(Section 7.4 Advocacy Guide)

Master, my name is. I am from Campbell George and Partners and I act for the Defendant, Turnberry Construction Limited. My friend, (Her/His title and last Name), of Montagu Wilson appears for the Defendant Chisholm Park Golf Club Limited.

Master, this is an application by the Defendant for security of costs in respect of a claim for breach of contract by the Claimant arising out of the Defendant doing work at the Claimant’s Golfclub, mainly redesigning holes 17 and 18, landscaping of fairways and laying of new bentgrass.

Master, the issues for you to decide today are whether there is reason to believe that the Claimant company will not be able to pay the Defendant’s costs of ordered to do so and whether it is just to do so in the circumstances.

Master, have you been provided with a bundle?

Master, would you like a summary of the facts?

By reference to the documents identify relevant facts and law. May wish to refer to law relevant to dispute when making submissions on strength of claim/defence and on whether it is just to make an order

(Section 7.5 Advocacy Guide)

[applicant’s submissions highlighted in yellow

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Master, could I please take you first to the Particulars of Claim dated_____ . Master, paragraph 2 of the P of Claim mentions the contract which is attached to it.

Master, could I please take you to the contract on page 26 of the bundle, dated 7 January 2013. Master, Schedule 1 of the Contract is clear in that it was not an explicit term of the contract to install any drainage…

Master, if I may please take you to the Witness Statement of Judy Flangan on pages 28 and 29 of the bundle.

Master, in paragraph 4 it is clear that the Claimant specifically requested bentgrass greens as they would attract more business.

Master, subsequently in paragraph 5, the Defendant warned the Claimant of the difficulty of improving the drainage on clay-sub-soil such as that at Chrisholm Park. Master, similarly, the Defendant warned the claimant about the lengthy growth of bentgrass.

Master, if I may now take you to paragraph 6. Master,...