Pleadings: Do not overlook these points!

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Pleadings: Do not overlook these points!

Some subscribers have written in asking for a second chapter on drafting pleadings. Here it is.

I had previously done one in 2018, see below for the text article and the video here:

[1] Listen to your client

Study all the evidence you can get your hands on first. Do not jump into anything.

Do not start drafting. Wait.

Pretend that you are at the end of a trial and draw up a draft end of trial submission or submissions or speech.

That will give you an idea of the case that you have against the other side, and the case the other side has against you.

It will give you an idea of where you are going, what you are supposed to do, and what you should ask for.

[2] The court in which you are going to file your papers

Some of the relief that you are asking for may not be given by the court because it may not have jurisdiction.

So, you must think about the court where you are going to file the papers.

You must ask yourself whether the court is empowered to give you the relief you want.

[3] Decide what relief you want

So, when I am drafting a pleading, I will only concern myself with the tail end of it.

What is the relief I am going to ask the court at the end of the trial.

If I am the plaintiff, the first thing I want to do is I want to first ask for a declaration of my rights, almost everybody forgets it.

If you think the defendant is a trustee then ask for a declaration.

We ask for a declaration that the defendant was constituted a constructive trustee of the beneficiary in relation to the property.

Then ask for another declaratory order that regulates your rights.

Then ask practical orders that will make the declaration into concrete results and an order that the defendant render to the plaintiff the all accounts, all monies received and all monies expended and the location, the amount and nature of the assets of the estate.

Then ask for injunctive relief. You might ask for a receiver and a manager to be appointed over the property.

Then you have to study the Rules of Court in relation to receiver and manager.

If you are going to appoint a receiver and a manager, there are certain preconditions or trigger points that you have to clear. Clear those trigger points then think about discovery.

[4] Discovery

If I am going to ask for these documents, I will ask for discovery. If I do not ask it in the statement of claim, I have to ask during the interlocutory proceedings.

Think about third parties. In the old days we used to call it a Norwich Pharmacal order: when a person who is not a party to an action is in possession of documents, without making that person a party you can make an application, serve it on the third party and demand that person renders documents to you.

It is an exception. The Rules of Court 2012 included a new rule that deals with this now. You can expressly go and ask for the document. Think about those things.

[5] Costs

Most lawyers ask for legal costs and stop there.

You are entitled to interest on the judgment sum and interest on the cost awarded by the court.

Sometimes when an order of cost is made, the defendant will not pay. He will take five years. You can ask for interest.

The unpaid interest will help you to cross the quantum barrier when you are going to go for bankruptcy proceedings against the defendant.

So, think about these practical points.

GRATITUDE
This video would not have been possible without the relentless, unceasing and often sleepless efforts of the Japanese artist, En. Samad Hassan, the sacrificial research and scripting of Miss KN Geetha, Mr JD Prabh Singh and Mr GS Saran.

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[tso]

This is so timely and what GK just said is what I have been looking for to prepare my case to recover trust properties. GK thank you. You are Godsend.

[jolantahill]

GKtv is a great YT Chanel ThankYou So Much👏
Please could you consider doing a presentation on cause of action⚖️👍
ThankYou again🎉

[sarcasmsm]

Thank you sir. Please can you speak on cross examination & your personal experience on this issue

[pathfinder]

Dear GK Sir, I would like to suggest a video on what to avoid so not to give a bare denial defense, or when your case seems like having no defence, what you could do to help your client

[evelynshoba]

I'm representing the Defendant for 1/2 share ownership dispute. In another word the Plaintiff's is going against S340 NLC on the 1/2 share of Defendant. Now my question here is can the Defendant who is the rightful owner, who no longer staying in that property, file a counter claim for issue on distribution. Defendant prayers are Plaintiff to buy the 1/2 share from the Defendant or the property to be sold and the proceeds to be shared by both parties.

[amirs_]

Sir, please elaborate further on discovery in practical sense. What can be done, what cant be done, what if the other party deliberately hide or destroy documents or object to produce some documents on pretext of secrecy etc, what are implications on those occasions. Thanking you in advance, Sir.

[muhajirwazinie]

Thank you for the insightful video Mr. GK. Sir, how do we bring back the court attention to the main issues when the other side raise a point that not concerned to the case and the court inclined to agree with the other side arguement? I caught this situation a month ago and I've been wondering about it since then. I hope you could enlighten me. Thank you sir.

[krisnanstravelvlogscomings]

Sir I can make a video on how to write & structure a criminal law essay like for example, if the accused did not know that there was an injury inflicted on the victim and the bleeding, if unattended to, in the normal course of nature could cause death, is it possible that the accused can be charged for murder or for any other lesser crime ? Based on this essay question how to would one establish the offences followed by the legal issues ?