I have recently been involved in two separate RTA small claims trials. In the first case, I was the Defendant, and in the second case, I was for the Claimant and both cases had very poor Particulars of Claim, with no actual allegations of negligence. Fortunately, in a small claims venue, the Court was willing to look into the issue on both occasions, but in other cases, there have been problems.
I had a case dismissed because the pleaded case was not consistent with the Claimant’s evidence. I was even able to prevent the Defendant from challenging the enforceability of the credit hire agreement because it was not challenged in the Defence. The Judge was unwilling to look past the omission, which was good because I knew my client’s responses to questions would have made enforceability questionable. Claimant.
In discussion with my opponent I made reference to Trigger’s broom.
Only Fools and Horses
Sometimes the old classics give fantastic analogies. Everyone must recall the Only Fools and Horses episode where Trigger is given a medal by Councillor Murray. Most will remember the episode for its iconic Batman and Robin scene. However, Trigger explains to everyone in the cafe that he received his award for using the same broomstick for twenty years. Cue the the quote:-
Trigger: “I’ve maintained it for 20 years. This old broom has had 17 new heads and 14 new handles in its time.”
Sid: “How the hell can it be the same bloody broom then?”
Trigger: “Well here’s a picture of it. What more proof do you need?”
The problem is that someone, somewhere, drafted a set of pleadings. Those pleadings have been reused, but then tweaked. Those tweaks are tweaked further and at somepoint, the amendments are so far removed from the rest of the pleadings that they become defective.
At some point, the above-unnamed law firm had amended their precedent Particulars of Claim so significantly that they no longer had allegations of negligence. The fee earners, wholly reliant on their precedent, were unaware (or overworked that they did not notice).
Precedents are useful when used correctly
This article is not suggesting precedents should not be used. They should. They are invaluable tools for fee earners, ensuring consistency and efficiency in preparing a client’s statement of case. However, relying on templates carries certain risks if not used correctly.
There should be a main precedent which has not alterered. Use it as a template to ensure you include the relevant sections required (such as particulars of negligence).
Then, the necessary amendments can be made. Sometimes, copying and pasting is not the way to go. Instead, create a new version based on the precedent but fact-specific. I used to catch out a lot of junior counsel in holiday sickness cases because I would limit my client’s allegations to just one of a breach of the s9 Consumer Rights Act 2015 (requirement to provide goods that are of satisfactory quality). The junior counsel would draft elaborate paragraphs referring to allegations my client never made. This was all because of copy and paste and no care to customise or check the accuracy that was being amended or left in.
On the other hand, the precedent needs to be updated. I’ve seen Particulars of Claim and Defences that retain allegation, law or statutes that no longer apply to such matters.
The other key is to under what is pleaded in the precedent and why. I had a fast track trial where the claim should have been one brought under the Occupiers’ Liability Act 1957 (an area which was not highway but was managed by new build management company). Instead, the allegations were pleaded relying on s11 Landlord and Tenant Act 1985 and s4 Defect Premises Act 1972. Fortunately we were able to get around the issue. Technically, I only had common law allegations and under common law before the 1957 Act, there were various classes of visitor and each had it own duty of care owed to them. It is less likely that a fee earner will make the mistake of adding or removing the necessary element of the pleading if they understand the law/statute requiring it.
Trigger’s broom is bound to happen. However, as long as it it still a broom then there is no issue. If it has been modified so much that it is now a pitch fork, then it is going to cause problems. Just remember this when it comes to precedent pleadings.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.