GOLDEN RULES OF DRAFTING. Paper by James O Reilly SC Monday 23 rd March 2009 TABLE OF CONTENTS I. INTRODUCTORY OBSERVATIONS 1

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1 BAR COUNCIL SEMINAR GOLDEN RULES OF DRAFTING Paper by James O Reilly SC Monday 23 rd March 2009 TABLE OF CONTENTS I. INTRODUCTORY OBSERVATIONS 1 II. THE ANATOMY OF AN AFFIDAVIT.1 III. THE ANATOMY OF A NOTICE OF MOTION..4 IV. THE ANATOMY OF A STATEMENT OF CLAIM.5 V. THE ANATOMY OF A DEFENCE 8 VI. THE ANATOMY OF A STATEMENT REQUIRED TO GROUND APPLICATION FOR JUDICIAL REVIEW.9 VII. THE ANATOMY OF A STATEMENT OF OPPOSITION..11 VIII. THE ANATOMY OF LEGAL SUBMISSIONS 13 i

2 I. INTRODUCTORY OBSERVATIONS 1. The importance of facts. Facts are king. 2. A timeline helps. 3. The importance of good grammar and simple English. e.g. never it s (abbreviation for it is ) for its (indefinite article). 4. Different styles of pleading. Plenary proceedings: facts. Judicial review pleadings: facts and law. Legal submissions: a focused submission. 5. Know your law reports. Official reports in preference to unofficial reports. Irish Reports not Irish Law Reports Monthly. Appeal Cases, Queen s Bench, Chancery, Family not All England Law Reports. Weekly Law Reports not All England Law Reports. European Court Reports not Common Market Law Reports. Do not forget the neutral citation. 6. Know your practitioners texts on pleadings etc. O Floinn and Gannon, Practice and Procedure in the Superior Courts, 2 nd edition. Delany and McGrath, Civil Procedure in the Superior Courts, 2 nd edition. Dowling, Civil Procedure in the Circuit Court, 1 st edition. Collins and O Reilly, Civil Proceedings and the State, 2 nd edition. Bullen and Leek, Precedents of Pleadings (any edition) The White Book (The Supreme Court Practice 1999, especially volume 1). 1

3 II. THE ANATOMY OF AN AFFIDAVIT 1. Types 2. Titles 3. Deponent Grounding ex-parte application; Grounding interlocutory application; Grounding originating Notice of Motion; Grounding proceedings (Special Summons); Replying Affidavit; Supplemental Affidavit If proceedings are in being will follow the title of the proceedings; If Affidavit is part of originating documentation have regard to the rules of court (Circuit Court, High Court or Superior Court) as to whether the title needs to include a reference to any statute, rule of court, intended proceedings parties (see notes on Statement of Claim). Identify appropriate deponent usually the party to the action who is making the application (minor/person of unsound mind, next friend) company (company secretary/director). Solicitor as deponent?; only in exceptional circumstances and explain reason why. Explain source of knowledge. 4. Function or purpose 5. Structure Consider at the outset what the function of the Affidavit is, the proofs necessary to be placed before the court in the Affidavit and the relief being sought or resisted on foot of the Affidavit. Logical, Sequential, User-friendly, Use of headings. 6. Identification of deponent Name, address, occupation Solicitor filling in the blanks 2

4 Give explicit directions Request that if in doubt the Solicitor should revert to you. 7. Means of knowledge clause State whether Affidavit being made on deponent s own behalf or on behalf of another person or entity with their consent and authority. I am advised by my Solicitor, (name) and believe 8. Introductory material Basic facts giving rise to necessity for proceedings/application. 9. Substantive matters Matters giving rise to necessity for court order or reasons why court order is being resisted Replying to or rebutting allegations made Reminder: have regard to the necessary proofs. 10. Replying affidavit Seek comment and instructions from client and Solicitor If necessary ask for consultation. Have regard to relief being sought, whether proofs made out and if not, set out why not. 11. Exhibiting documents 12. Style Original where possible Proper copy (e.g. Companies Office State certificates, Iris Oifigiúil - Probate Office - Land Registry) Documents which prove themselves (e.g. court orders made in a court of record in the jurisdiction of Ireland, Grants of Representation) One document per paragraph At end of paragraph. Reflect actual deponent Keep paragraphs short or deal with one item per paragraph Keep sentences short Avoid unnecessary verbosity I say that, I say and believe that - 3

5 13. Jurat 14. Filing clause Prayer - Revert back to function and purpose May refer to Notice of Motion, ex-parte docket or Special Summons May need to set out the prayer for relief more explicitly with reference to Rules of Court or perhaps the statutory provisions Resistance to relief. Importance of filing clause. Perfected orders only refer to affidavits by the date they are filed in court and not the date they are sworn. 4

6 III. THE ANATOMY OF A NOTICE OF MOTION 1. Title If proceedings in being will follow the title of the proceedings. If Affidavit is part of originating documentation have regard to the rules of court (Circuit Court, High Court or Superior Court) as to whether the title needs to include a reference to any statute, rule of court, intended proceedings. Parties (see notes on Statement of Claim). 2. Notice of motion for the sitting of the court If Respondent is unrepresented Body of motion should reflect that it is this type of Notice of Motion Ensure when motion is being heard that it is called at the sitting of the court Affidavit of Service of the motion will be particularly important. 3. Formal parts Date Time Motion for the sitting of the court Motion at the first opportunity The court in which application will be made Identification of moving party. 4. Orders being sought Frame clearly Where necessary make reference to appropriate rules of court or statutory provision In case of injunctive relief have particular regard to the clarity of the order being sought, either by way of restraining or mandatory relief Further or other order Costs. 5. Grounding documents Set out clearly Affidavit(s) Documents etc. 5

7 6. Date of Notice of Motion 7. Identification of Solicitor issuing Notice of Motion 8. Notice parties Ensure that all notice parties are referred to on the Notice of Motion Ensure that all notice parties are served with the Notice of Motion and grounding documents Affidavit of Service Ensure that Solicitor is advised to have in court an Affidavit of Service of all of the relevant documents in the appropriate form so that the motion may proceed in the event of a non-appearance. 6

8 IV. THE ANATOMY OF A STATEMENT OF CLAIM (This can also be adapted for use with a Civil Bill) 1. Title Parties: plaintiffs; defendants; and third parties. Capacity of parties suing and being sued. A minor, a person of unsound mind, person being sued as a trading firm. Notice parties: the Attorney General and the Human Rights Commission (Orders 60 and 60A Rules of the Superior Courts). 2. Delivery clause 3. Identification of the Plaintiff(s) Address, occupation and perhaps capacity in which the Plaintiff or Plaintiff(s) might sue, e.g. as legal personal representative of a deceased person. 4. Identification of the Defendant(s), Address, occupation/description and perhaps capacity in which the Defendant or Defendant(s) is sued 5. Pleading of the cause of action Facts giving rise to the cause of action Example one Example two Action for specific performance, pleading of contract, nature of contract, any formality required for a contract whether contract is oral or written, if contract is required to be evidenced in writing pleading that the contract is so evidenced or if there is not evidence in writing, pleading of partperformance and particularising of same Breach of contract or failure to perform same. Action in negligence, pleading of circumstances in which duty of care owed - breach of duty of care (with particulars) - that the Plaintiff suffered loss as a result (with particulars). Example three Testamentary suit, pleading that deceased persons executed his or her last will and testament 7

9 6. Damage on a particular date and then died without having revoked or altered the will or pleading that a testator executed a pretended testamentary document on a particular date, that the pretended testamentary document is invalid on a number of grounds (lack of due execution, lack of testamentary capacity, duress or undue influence). Facts not evidence pleaded in statement of claim. Where appropriate pleading that the Plaintiff has suffered loss and damage particularising same items of Special Damage. 7. Prayer for relief Care in framing relief particularly chancery matters. 8. Signature of Counsel. 9. Schedule The addition of any schedule that may be appropriate. 8

10 V. THE ANATOMY OF A DEFENCE 1. Title Will follow the title used by the Plaintiff 2. Delivery clause 3. Preliminary objection You may have a preliminary objection to the particular cause of action, e.g. on the basis that the Plaintiff may not have locus standi to bring the claim which he or she may be bringing. For example, in the case of a testamentary suit where the rules require that there be particulars of lack of capacity and lack of undue influence, you might raise a preliminary objection that such particulars have not been pleaded. 4. Admission of facts Any facts that are pleaded in the Statement of Claim that are not expressly denied are taken as admitted and some take the view that the admission of facts explicitly is poor drafting style. It may be however that you are admitting portion of a paragraph in the Statement of Claim while denying another portion of the paragraph and in order to make matters clear, you might admit the particular fact and deny the other fact. The drafting of a Defence necessitates careful evaluation of the Statement of Claim and careful consideration of what matters of which the Defendant might be put on proof. 5. Denial of elements of the Statement of Claim upon which you wish to put the Plaintiff on proof. 6. Pleading of any alternative version of events which the Defendant wishes to put before the court together with any particulars. 7. Pleading of any special Defences that might arise, e.g. (a) Lack of compliance with The Statute of Frauds (Ireland) (b) Contributory negligence. (c) The Statute of Limitations, (d) Novus actus interveniens. (e) The rule in Rylands v Fletcher. 8. Denial of The Plaintiff s right to relief 9

11 9. Inclusion of counterclaim when appropriate pleading all element. 10. Signature of Counsel. 11. Schedule Inclusion of any schedule as appropriate. 10

12 VI. THE ANATOMY OF A STATEMENT REQUIRED TO GROUND APPLICATION FOR JUDICIAL REVIEW 1. Title Applicant and respondent. Notice parties. 2. Applicant s description, occupation and address. 3. Relief sought. Careful pleading of specific legal reliefs. Certiorari, prohibition, mandamus, declaratory relief, damages. 4. Grounds on which relief is sought. Plead exhaustively the legal grounds on which reliance is placed. Include a statement of the facts on which the application is based. 5. Name and registered place of business of solicitor for applicant 6. Do not delay, act promptly. 7. Verifying affidavit Verify the facts in the statement of grounds. Adapt what has been said on the Anatomy of an Affidavit. Exhibit any order of a court of first instance or of a tribunal or a statutory body that is sought to be quashed. Adapt what is said on The Anatomy of an Affidavit above. 11

13 VII. THE ANATOMY OF A STATEMENT OF OPPOSITION 1. State clearly the grounds of opposition. Do not just traverse the statement of grounds. 2. State any facts on which reliance is placed opposing the application. Plead facts clearly and precisely. 3. State the legal grounds relied upon with reference to the relevant legislative provision. List each of the separate legal grounds of defence on which reliance is placed. 4. Verifying affidavit. Verify the facts relied upon in the statement of opposition. Exhibit any further order on which reliance is placed. Adapt what is said on The Anatomy of an Affidavit above. 12

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15 VIII. THE ANATOMY OF LEGAL SUBMISSIONS 1. Legal submissions in the High Court and Supreme Court. 2. Dos: Enter a deadline in your diary when legal submissions are to be filed and keep to it. Prepare a table of contents to the submissions and paginate them. A table of contents will make the submissions easier to read. The submissions should be paginated and include where appropriate headings and sub-headings. Paragraph numbering should also be included for convenience. Make a legal submission with reference to the issues of fact or issues of law. In the Supreme Court, set out clearly and succinctly the primary issue or issues of law which it is intended to argue in the appeal. Adopt a schematic approach: a beginning, a middle and an end! If time permits, produce a draft of the legal submission and return to it some days later. Second thoughts are often best and other thoughts will most likely occur. Judgments: always cite official reports in preference to unofficial series if available. Do not forget the neutral citation in addition for judgments otherwise available on the Courts Service website. Avoid over-citation of authority. Ten to fifteen pages should be more than sufficient even in a complicated case. The Supreme Court Practice Direction requires a submission to be no longer than 25 pages unless the leave of the court is required. 3. Donts: Do not postpone written submissions. You will simply forget the facts and the law. For a Supreme Court submission you will lose the impressions made and formed during the High Court hearing. Do not prepare a written submission which excludes a submission on the factual matter in issue. 14

16 Do not prepare a written submission which excludes a submission on the legal matter in issue. Do not swamp the court with unnecessary and inappropriate authorities. Do not use legal jargon or slang. Do not use bad grammar. 4. Focused submission Above all else, make a focused and targeted submission. 15