Summary
Summary Commercial Dispute Resolution
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- Institution
Consolidation notes for CDR (Commercial Dispute Resolution)
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COMMERCIAL DISPUTE RESOLUTION – CONSOLIDATIONWorkshop 1: Case Analysis and Initial steps
Outcome 1: Perform a detailed initial case analysis
Key Players Individuals
Client - Instructing Party
Opponent - CEO/Managing D of opponent
Any other parties?
Key Terms
The product
The specification
The storage requirements
CHRONOLOGY CONTRACT
EXPRESS TERMS
Started to trade with Party 1
Product will conform with specification and
Started to trade with Party 2 do so for 3 months following delivery
Negotiations with Opponent IMPLIED TERMS
Usually SGSA: product will be of
Entered into Contract with Opponent satisfactory quality and fit for purpose
Date product was ordered - BUT, has the implied terms been
EXCLUDED? B2B contract – can
Date [ingredients] were received exclude subject to
REASONABLENESS
Date product was made - If so, Opponent can only rely on the
Date X amount of product sent to Party 1 EXPRESS TERMS.
Date product shipped to Opponent REMEDIES
Consider when does RISK PASS? What is the Opponent seeking?
Shipping requirements? In particular packaging? - Lost profit
Date consignment delivered to Opponent - Replacement product etc.
STORAGE REQUIREMENTS?
ANY GAPS IN INFORMAITON DEFENCE
No breach: product in accordance with the
Date Opponent begins to use the product contract
Date Opponent gives Client notice about issue
COUNTERCLAIM
Compliant with Contract?
Potential problem caused by Party 1?
Date Client has to remedy the action by?
LIMITING LIABILITY
Limited to price of product; not limited to
indirect, consequential losses etc.
Outcome 2: Advise on the early steps which your client should take with a view to both protecting
their position and resolving their dispute
Does the Client have document trail re. negotiations?
Any expert reports required to be disclosed – what is the Opponent basing the claim on? Veterinary
report, medical report etc. Copy provided?
Losses foreseeable?
o Has the Opponent provided evidence of the losses they have incurred?
Any amount of the product left?
Manufacturing policies, preventing contamination? Health and Safety Policies etc?
Settlement? Court? Relationships?
Time and energy available to pursue a claim?
o Bear any limitation/response times in mind.
Preliminary investigations conducted?
Complaints from other customers?
Take a WS from other customers who bought the product.
,Commercial considerations
Insurance policy to underwrite the claim? Does the value cover the whole costs?
Pursue a strong defence – not the client’s fault.
Contracts with other parties involved – do we have a copy?
Any emergency measures Injunction required? - Is there a risk that evidence will be
destroyed if one is not sought?
- Has the evidence been destroyed
already?
Very expensive – so if there is very little point –
should not be sought.
Any contractual/limitation Does the contract - Approach Opponent to extend limitation?
deadlines which must be stipulate a shorter - Likely the Opponent doesn’t want to
complied with period? terminate agreement – so can a concession
be given: if they offer replacement product
on a without prejudice basis: i.e. not
admitting liability – just to ensure that the
contract is maintained.
- Act quickly: conduct thorough investigation
which is proportionate in response.
Witness evidence Look at the facts - Client’s important characters – managing
required director, CEO etc.
- Individuals who signed any invoices
- Person dealing with the product and its
production etc
- Customers
- Shipping company
- Vet/expert: no property in a witness
Documentary evidence Look at the facts - Pre-contractual:
required Delivery/shipping docs
Processes and procedures
Packaging – instructions provided
Documents for internal investigations
Evidence to prove losses from
Opponent
Expert Evidence Liability - Product – how, what, why? Manufacturing,
packaging, shipping
Causation - Veterinary expert/medical expert etc.
Loss Limitations in contract - Evidence from Opponent re. losses
- Counter-claim: forensic accountants
evidence re. own losses.
Parties Financial position - Client: insurance policy?
- Opponent/counterclaim etc. worth
pursuing?
- CoHo records etc.
Damage Limitation Product recall needed? - Outstanding complaints from customers/
previous clients
Pre-action protocol Exchange of sufficient - Does the letter comply with the
information of each requirements for a Letter Before Claim?
side’s case Likely just to be a notice under the contract.
Must detail the breach, loss, provisions of
contract, evidence relied upon (eg vet.
report etc)
, Outcome 3: Identify the commercial considerations and needs of a business client involved in a
dispute.
Client’s commercial Opponent’s likely Any common ground Impact on approach to
priorities & objectives commercial priorities & dispute
objectives
Maintain business/ Obtain compensation Yes – want to maintain Avoid litigation
relationships with relationships
Opponent – prevent
Opponent from
terminating
Move into Asian market Protect reputation – if Confidentiality ADR – mediation –
– confidentiality problem is with confidentiality
Opponent’s own
procedures.
Limit time and cost Already lost a lot of Time and cost ADR – mediation –
spent on dealing with business – want saves time and cost
dispute quickest resolution
Lucrative deal – spent Don’t want to Full investigation = ADR – settlement but
time negotiating avoid terminate – want ensure problems do not full, detailed
termination by assurance that the continue. Get to investigation
Opponent incident will not repeat bottom of the issue.
Limit exposure – limit Want fullest amount of No. Expert Determination –
SPLs exposure compensation get opponent to be
realistic about losses in
relation to limiting
liability so most of
claim falls away.
Protecting reputation – Opponent wants to Yes ADR - confidential
moving into Asian protect reputation
market
Workshop 2: Interim Prohibitory Injunctions
Outcome 1: Advise a client on the procedure for obtaining an interim prohibitory injunction, including
the requirement to provide a cross-undertaking in damages, whether an interim application should be
made with or without notice and likely costs orders.
NB. Prohibitory injunctions PREVENT/PROHIBIT the respondent from doing something.
Mandatory injunctions – requires respondent to do something – i.e. remove fencing/huts
On or without Notice?
The court may grant such injunction on an application without notice if there are good reasons for
not giving notice:
The applicant must demonstrate that one of the below scenarios applies
1. The matter is too urgent for 3 clear days’ notice to be given; or
a. Look at the case timeline – anything to suggest that the harm is imminent – e.g.
delivery of animal due to take place in the next 2 days?
2. The Respondent would take steps to harm the Applicant if he was forewarned of the
application
a. Look at the facts – is there anything to suggest that the respondent might destroy
crucial evidence?
If the applicant cannot make out either ground, then they must give 3 clear days’ notice.
Documents required to be served for an Interim Prohibitory Injunction:
Claim Form (and pay fee) – cannot be an application in isolation – need to issue a claim
N244 Form supported by evidence – e.g. witness statement
Cross-undertaking for damages and evidence: latest accounts – financial evidence
Draft Order on disc and paper
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