Civil Advocacy - Interim Payment Skeleton Argument PDF

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Sample Skeleton argument for Interim Payment
Civil Litigation
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BPTC: ADVOCACY

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IN THE HIGH COURT OF JUSTICE

Claim No. 2017/658

BETWEEN:

MRS HAZEL LAWSON Claimant/Applicant and MS AMBER TURNER Defendant/Respondent

_______________________________________ INTERIM PAYMENT APPLICATION SKELETON ARGUMENT ON BEHALF OF THE CLAIMANT ____________________________________________________

1.

Introduction

1.1 This is the Claimant’s [C’s] application for an interim payment pursuant to CPR 25.7(1)(c), and s.32 Senior Courts Act 1981. The sum requested is £100,000. 1.2

C is an events organiser and wedding planner. She operates at the high end of the market. She contracted to organise and project manage the Defendant’s [D’s] wedding which took place on 30th July 2017.

1.3

It is C’s case that the contract included, amongst other things, an express term that D would pay C a fee of 10% of the overall cost of the wedding by way of a project management fee (PMF) in addition to an agreed daily fee of £1000. D disputes that the PMF was agreed. D has paid £1,700,000 to date (on account), and C’s claim is for the outstanding debt, namely £329,996.15

1.4

D brings a counterclaim against C. D’s legal first name is ‘Maud’ although she is commonly known as ‘Amber’ (her middle name). During the wedding ceremony the Registrar used the name Maud to marry D. D says that this was embarrassing and not what she wanted. She alleges that this is a breach of C’s contractual duties to make the day go ‘without a hitch’ and to ensure the event provided good publicity. Her counterclaim represents the full cost of the wedding, plus damages for distress and loss of reputation.

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2.

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Documents

2.1 The documents relied upon (in addition to the pleadings) in this application are: Witness statements: Exhibits:

Statute: Authorities:

Hazel Lawson [Lawson], Amber Turner [Turner], Letter [HL/1] Invoice HL/2] Cosmopole article [AT/1] The Marriage Act 1949 Scammell v Ouston [1941] AC 251 HL (a statement must be sufficiently definite in order to be a term of the contract). Malik v BCCI [1998] AC 20 HL, (no claim for loss of reputation unless specific loss identified).

3.

The test for Interim Payments

3.1

CPR 25.7 provides: (1) The court may only make an order for an interim payment where... (c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;... (4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. (5) The court must take into account contributory negligence and any relevant set-off or counterclaim.

4.

The issues in the case

4.1

The issues in the case are: a. What is the term of the contract regarding C’s payment? Was it £1100 per day, or £1000 per day plus a 10% project management fee? b.

What was the contracted standard of service? Did the contract include terms that C would “do everything” or that the wedding would “go without a hitch” that might offer some sort of guarantee of a ‘perfect’ occasion?

c.

Did C breach the standard of service contracted for, by either a) failing to ensure the Registrar used the name ‘Amber’ in the ceremony or b) failing to ensure entirely positive publicity?

d.

Can D counterclaim the entire value of the contract for any breach that might be found?

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5.

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Will C obtain judgment?

What is the term of the contract regarding C’s payment? 5.1

The project management fee (PMF) is an express oral term. C is more credible in saying that she did indeed explain her price structure [Lawson para 4], and D had every reason to ‘switch off’ and pay little attention to the explanation. a. PMF is a standard term for C, (so she’d be unlikely to forget it); b. This was an organised meeting at which she was expecting to explain her fees; c. D, by contrast, was extremely busy, had just been given £2,000,000, had just explained her ‘dream’ wedding.

5.2

Further or alternatively, the PMF is an express written term. As D is on notice of C’s standard terms, she should be bound by them. a. ‘+10%’ is included in the letter [HL/1]; b. D accepts that the letter evidences the terms of the contract [Def and CC para 1]; c. D accepts being on notice of the 10% term [Turner para 4]; d. It is on a separate line to the daily fee; e. It is set out in the same way as the VAT charge (which clearly applied to the whole cost of the wedding).

5.3

D interpreted the ‘+10%’ as a tip on the daily rate. This is an implausible construction as C would have simply charged D £1100 per day. Tipping in large commercial contracts is essentially unheard of. No officious bystander would accept D’s interpretation.

5.4

Further, D had constructive notice of the term as the basic structure had been explained to Frank Turner, who was acting as D’s agent. There is very close proximity between Frank Turner and D in conducting this contract from which agency can be properly implied. a. Frank Turner provided the money for D to spend [Lawson para 2]; b. Frank Turner made additional requirements (i.e. the ‘time tunnel’).

5.5

Even if the fee is not deemed to have been fixed due to any perceived lack of acceptance, the Consumer Protection Act s.51 entitles the court to fix a reasonable fee. There is clear consideration for the PMF which should be regarded as reasonable. a. A venue was secured only due to C’s contact with Lord Gates [Lawson para 5]; b. Many contractors could only be secured on the back of favours and promises that C was able to negotiate [Lawson para 6].

6.

Will damages be substantial?

6.1

This case clearly involves substantial sums. The amount of the unpaid debt is set out in the particulars of claim and amounts to £310,796.35.

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7.

Reduction for counterclaim?

7.1

It is C’s case that the counterclaim will fail in its entirety.

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What was the contracted standard of service? Did the contract include a term that C would “do everything” or that the wedding would “go without a hitch”? 7.2

C denies that the phrases “I will sort out everything” and “without hitch” were terms of the contract. The phrases are clearly ‘mere puff’ and too imprecise and ambiguous to become a term of the contract [Scammell v Ouston].

7.3

In determining what standard of service C was capable of delivering, the court is asked to consider the extent of the job required and the exceptional pressure of time.

Did C breach the standard of service contracted for, by either a) failing to ensure the Registrar used the name ‘Amber’ in the ceremony or b) failing to ensure entirely positive publicity? 7.4

It should be implied into C’s remit that she would instruct the Registrar on the name to be used orally in the ceremony as the normal expectation is that people contract their marriage in their full legal name. Asking the Registrar to publicly avoid her legal first name was unusual and potentially unlawful, given that The Marriage Act 1949 implies use of a full in name in providing that: s.44 (3) Where a marriage is solemnized…the persons contracting the marriage shall, in some part of the ceremony .. make the following declaration:-"I do solemnly declare that I know not of any lawful impediment why I, AB, may not be joined in matrimony to CD".

7.5

Any reasonable construction of the division of duties between C and D to make this contract work would put the onus onto D to express her wishes in relation to the use of names. D should be responsible for asserting her wishes given that C would not know D’s relationship with her own full name, and that C could so easily have expressed her position and either: (a) Tell C directly; (b) Tell the Registrar of her wish to be referred to as ‘Amber’.

7.6

The ‘real’ names of celebrities are usually very easily discovered and it is not foreseeable that D would consider her legal name as an embarrassing secret, so C would not imagine that she had to protect against the discovery of her name in the ceremony.

7.7

The negative part of the publicity was not entirely caused by the use of the name. The true causes of the negative publicity were out of C’s control, and were 1) D’s reaction to the use of the name (rather than the name itself) and 2) the vanity of the time tunnel.

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Can D counterclaim the entire value of the contract for any breach that might be found? 7.8

Good publicity was the desired consequence of the contract, it was not the object of the contract. C is a wedding planner, not a public relations manager.

7.9

The use of the name Maud could only be a minor breach in an otherwise exceedingly well organised event. Repudiating the entire contract when there has been huge value to D is plainly unconscionable: a. Cosmopole called the wedding ‘sensational’, ‘spectacular’ etc [AT/1]; b. The fact that the day was ‘stunning’ [Lawson para 8] is not challenged by D.

7.10 D’s sense that the day was a disappointment is likely to be because of many other adverse factors: a. The actions of the best man [Turner para 7]; b. The failed honeymoon [Turner para 8 and 9]; c. The poor publicity surrounding the time tunnel [Turner para 9]. 7.11 The best that D could reasonably expect would be a reduction to reflect distress and potentially the fee for the actual service (£35,000). 7.12 It is denied that there is any loss of reputation in being called your legal name or that damages would be awarded for “distress.”

8.

The amount sought as a ‘reasonable proportion’ of the final award

8.1

This application remains one for only about 40% of the likely final recovery, even with the following deductions from the £310,000, and making the following deductions: a. Deduct £35,000 as the value of the ceremony in which ‘Maud’ was said; b. Set off a small award for distress (£5000 - £10,000).

9.

The discretion of the court

9.1

Whether or not an order is made is a matter of discretion. C does not have to demonstrate that a certain sum is required to cover any particular need over and above the general need that a claimant has to be paid his damages as soon as reasonably may be done (Stringman above).

9.2

A good reason exits for asking for the money, and this should be persuasive in asking the court to exercise its discretion. The reasons here are: a. C is out of pocket having paid most of the remaining invoices from the wedding herself [Lawson para 13]; b. She is organising a marketing event in Chamonix.

November 2017 BPP Chambers

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