Civil (1)
Terms
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- What should you do when a client first approaches you?
- Undertake a careful case analysis to assess whether the client has a claim worth pursing
- Is litigation cheap?
- No. It is never cheap and should not be pursued without careful consideration
- What are the four elements of any civil claim that need to be established by a claimant?
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1 Duty
2 Breach
3 Causation
4 Loss - What should you consider in relation to duty?
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1 What is the duty owed
2 Is more than one duty owed - Is relation to 'Breach', what should you consider?
- Has the defendant breached that duty and if so how?
- In relation to 'causation', what do you need to show?
- Has the defendant's breach caused the claimant's loss
- Who must have suffered 'loss'?
- The claimant
- Who should you sue in a partnership?
- Partners stand together and fall together and therefore claims should be brought against the partnership.
- Who should a claim be brought against if a partnership has been dissolved?
- If the partnership has been dissolved then it no longer exists. You would have to sue the partners as individuals.
- What is another option to consider when suing a dissolved partnership?
- Sue the partnership's professional indemnity insurer
- How might a duty manifest itself?
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1 Contract
2 Tort - What kind of terms will a contract between parties contain?
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1 Express terms - (written or oral)
2 Implied terms - What legislation might imply terms into a contract for a supply of a service?
- The Supply of Goods and Services Act 1982
- What is the implied term in relation to skill under the Sale of Goods and Services Act 1982?
- The exercise of reasonable care and skill
- Might a tortious duty also be owed to a claimant?
- Does a common law duty of care exist?
- What cases establish that if a person makes a negligent statement (s)he could owe a duty of care to a person who suffered economic loss through reliance on that statement if there is a special relationship between the parties involving assumption and reli
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Hedley Byrne v Heller; and
Caparo v Dickman - True or false - Is the relationship between a solicitor and client an established category of special relationship in tort?
- True
- True or false - It is permissible under English law to have concurrent duties in tort and contract?
- True
- Does a claimant need to decide which claim to pursue (contract or tort) or can (s)he elect to pursue both?
- Can elect to pursue both.
- Why might a claimant decide to bring a contractual and tortious claim?
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1 Could be difficult to establish a contract
2 May be valid exclusion clause
3 Different imitation periods
4 Different defences - How do you determine whether the duty owed has in fact been breached?
- You need to consider what the duty owed actually means - what exactly is the standard owed?
- Ultimately what standard of care do you need to apply?
- You need to consider whether the standard met was that of a reasonably competent [type of professional] - basic level expected.
- What standard will a defendant in a matter wish to argue applies?
- The lowest standard possible
- What standard of care will a claimant wish to argue applies (think of a property solicitor for example)
- The standard of care of a reasonably competent solicitor specialising in commercial property law.
- What can be used to support an argument for a higher standard of care?
- Representations made by the defendant, for example purporting to be a specialist in commercial property law.
- How do you decide what standard of care applies?
- You don't. It is for the court to decide. It is for the parties to put forward arguments most favourable to them.
- What might the court look at in determining what standard of care applies?
- Look to see what advice other similarly qualified solicitors would have said.
- Name 3 remedies that a court can grant
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Damages
Injunction
Specific performance - What is the most likely aware of damages where economic loss has been suffered?
- Damages
- What is the purpose of contractual damages?
- To put the claimant in the position (s)he would have been in had the contract been performed correctly? I.e. had the contract not been breached.
- What is the purpose of tortious damages?
- To place the claimant in the position (s)he would have been in if the tort had not been committed
- What are the four basic options to consider how a claimant may have acted in a particular matter had the defendant not been negligent or acted in breach of contract?
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1 Not enter into the contract (negligent advice) may have entered into a different contract
2 Never entered into a contract
3 Enter into contract at lower rate
4 Entered into the contract nonetheless - What bar does the claimant need to reach for the court to determine what the claimant would have done had the tort or breach of contract not occurred?
- The claimant has to show that on the balance of probabilities it would have acted in a certain way
- Can a claimant always claim for loss of profits?
- Not always. It depends on the position the claimant is taking. If the claimant is arguing that it would not have entered into a contract following on from which profits couldn't be made, a claim for profits shouldn't be brought.
- When calculating a claimant's actual loss. What must your remember to do?
- Take into account what the claimant needs to give credit for.
- In relation to value, what must credit be given for?
- Any increase in value
- What factors might operate to reduce the amount of damages that a claimant can recover?
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Too remote?
Contributory negligence?
Mitigation? - Limitation period in contract
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1 6 years from date of cause of action
2 Cause of action accrues when breach occurs
3 Authority - s. 5 Limitation Act 1980 - Limitation period in tort
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1 6 years from date of cause of action
2 Cause of action accrues when the claimant suffers actionable damage
3 Authority - s. 2 Limitation Act 1980 - When will a claimant have suffered actionable damage in tort?
- When an individual has acted in reliance on something. For example, paid too much for something based on advice given
- What must you do in relation to relevant limitation periods
- Diarise them and stick to them
- What should we think about in relation to evidence?
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Witnesses
Experts
Documents -
What CPR part relations to costs? What should be considered in relation to costs?
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Costs (CPR Part 44)
- Billing your time
- Payement of costs - What is the general rule in relation to costs? CPR ref?
- the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.2 (2)(a))
- Is it likely that a successful claimant will get all of its costs?
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No as the defendant is likely to argue that the costs are too high. For example, because too much:
- time preparing documents; or
- partner time. - Can the court take into account a number of factors in deciding the amount of costs payable?
- Yes - CPR 44.4
- Who pays the shortfall between the amount of costs received and costs incurred?
- The client