Commercial Dispute Resolution (CDR) - Distinction - Full Summary. Predominantly B&W for printer costs and for own highlighting/colour coding. Includes cases not included in standard course material but done via research for extra marks. All in order of course as covered.
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CDR – Initial Steps and Case Analysis
Action List
Any emergency measures required Injunctions; freezing orders; search orders?
Contract about to be terminated by other side?
Do NOT get confused with damage limitation below.
Any contractual/limitation Anything in the k? Impending limitation period e.g. “rectify
deadlines which must be complied within 30 days” any appetite to extend from other side
with whilst claim is fully investigated?
Perhaps provide something “without prejudice” e.g. the
replacement feed in the SPL case study.
If not, statute.
Where are the gaps?
Witness evidence required List them; using names if you have them if not roles. The
players on the facts.
There is no property in a witness so can speak to those used by
the other side.
Documentary evidence required Contracts
Pre-contract negotiation docs
Memos of phone calls
Documentation of other correspondence; emails, letters etc.
Reports – storage reports, financial reports etc.
Physical evidence required Samples e.g. of faulty product.
Expert opinion required Expert on liability
Expert on quantum.
Look to the issue you’re looking to resolve e.g. someone who
can prove whether or not the leaky pipe caused the flood.
Financial position of Para 8.7 SRA Code = clients need best possible information
client/opponent at time of engagement and when matters progress as to overall
costs. E.g. Mastercigars v Withers LLP 206k versus 1m but
not absolutely binding cf. Reynolds v Stone Rowe Brewer.
Opponent able to fund action? Anyone you’re trying to tie in
Part 20 claim if they are going to indemnify you, they need
to be able to do that.
Opponent able to stump up and costs/damages/cross-
undertakings? Consider Security for Costs
Insurance?
look at Companies House and Issue report on economic
viability.
Initial thoughts on best form of Usually opt for non-determinative initially
dispute resolution method (negotiation/mediation) if you’re looking to preserve
relationships.
How long have the parties been trading?
Not settle but at least narrow the issues.
Damage limitation “Abundance of caution” notify other downstream actors if
faulty product etc. and recall if necessary. Stop the flow of
possible damages through halting and notifying
Pre-action conduct Objectives set out in para 3 PD-PAC: Avoid unnecessary
litigation, sharing of information and push towards ADR.
1
, Proportionality in paras 4 & 5 PD-PAC
Settlement and ADR in paras 8-11 PD-PAC
Approach of courts towards compliance in paras 13-16.
Example of court sanction for non-compliance = Digicel v
Cable and Wireless.
Disclosure obligations and pre-action disclosure (PART 31)
o Continuing duty, particularly important re: electronic
docs (PD 31B)
o CPR r31.16 gives court power to make an order for
disclosure BEFORE proceedings are issued where the
respondent is likely to be a party to the subsequent
proceedings.
How are the other side fairing at the moment? Has a letter been
sent and therefore no documentary back up and vague claims etc.
Important to keep your nose clean also and look to push the
objectives of PD-PAC from the off.
Complex Actions
Court wants as few actions as possible, with as few parties as
possible in order to reduce duplication of work in-keeping with
overriding objective. This also avoids the risk of inconsistent
judgements
Under CPR r7.3, C may use a single claim form to start all
Starting Position proceedings.
Difficulty arises when C wants to introduce a new CoA to
proceedings AFTER serving to PoC. Especially when limitation
period has passed and therefore court only has a discretion to allow
the amendment if the new claim arsis of the same/substantially
similar facts as existing claim.
Should include:
The basis of the claim – how the obligation and what is is:
e.g. through the written contract, to pay a specific sum on a
given date.
A. Counterclaims Failure to fulfil the obligation e.g. the sum due has not been
paid or, in non-debt cases, the failure has resulted in loss and
damage.
A claim for interest e.g. stipulated in k.
Representative Parties (CPR r19.6)
Where more than one person has the same interest in a
claim, one of them may, with the permission of the court,
pursue or defend the claim as representatives of the other
B. Multi-Party Claims (Part e.g. National Bank of Greece v RM Outhwaite 317 Syndicate
19) Claims Unless the court directs otherwise, any judgement or order
that is made against the representative party is binding on all
the persons represented.
Group Litigation (CPR r19.10 – 19.15)
2
, Number of claims giving rise to common or related issues of
fact or law Group Litigation Order (GLO); usually used
in context of pharma cases or environmental disasters.
Cut off date in place to amass parties allocated to
multitrack single lead solicitor (PD19B) Group PoC
or use of test cases.
Derivative Claims (CPR r19.9)
Usually used when a minority s/h wants to sue a director for
breach of duty company is also named as defendant.
C. Third Party Claims (Part See WS8
20)
Courts permission is required to remove, add or sub a party and
all of these actions require it to be desirable to resolve the matter
in dispute.
+ To ADD: matter is connected to dispute. Party to be added
D. Adding, Substituting and
must submit written consent to be added at court, which the
Removing Parties
court itself can compel.
+ To SUB: original party’s interest or liability has passed to the
new party consequential directions necessary (such as
serving of relevant docs on new party) must also be made.
Court may direct that one or more actions shall be consolidated
into a single action under CPR r3.1(2)(g); OR
E. Consolidation
Court may leave actions as separate proceedings but order that
they are tried together (CPR r3.1(2)(h)).
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, CDR – CAUSES OF ACTION
BREACH OF CONTRACT
1. Who is the Client? Individual or company?
See notes on complex cases.
2. Who is the Opponent? As above
3. Does a contract exist? Is it Date and name of the contract, who are the parties? What is the
written or oral? purpose very briefly.
4. Express Terms Relied on? State the relevant clauses, do they cross-reference schedules?
5. Implied Terms Relied on State the statute (See DR notes for Sale of Goods Act etc.) if not
excluded from the agreement – if stated in the contract these have
been excluded, take for granted they are able to do so; don’t get into
whether they can legally do that.
6. BREACH Adding the “NOT” to the above.
7. Likely Remedy/remedies Damages
Put the parties back into the position if the property would have
been properly performed therefore includes future profits so long
as they are not too remote.
Foreign currency okay but make sure exchange rate is nailed on.
8. Losses If you’re given figures, calculate them!
a) Opponent’s Assessment Usually, specific and then to more remote forms of damage e.g.
b) Client’s Assessment reputation.
Remember remoteness: Hadley v Baxendale (naturally flowing from
the breach AND within reasonable contemplation of the parties.
Remember mitigation.
9. Possible Defences a) Attempt to break the chain of causation but don’t get mixed up with
a) Defences of Liability bringing in other parties, counterclaims etc. IOW there was no
b) Defences of Quantum breach! Fault of defendant – when does risk pass?
b) Try to limit losses, any caps contained in k?
10. Limitation of Liability (a) Limitation on time
a) Within k? In the majority of cases, the limitation period commences on the
b) Statutory date the cause of action arises.
Contract and Tort = 6 years.
Exceptions:
Cause of Action for Contingent Liability = from date contingency
occurs.
Extension period for minors until they attain majority.
Latent damage in negligence initial time limit extended under
s14A LA 1980 to the date three years after the claimant first had
knowledge w/ an ultimate longstop of 15 years from alleged breach.
Societe Commerciale de Reassurance v Eras confirms only
available in negligence claims NOT BoK.
Fraud = limitation period postponed until six years from discovery
of the fraud (s32 LA 1980).
Consumer Protection Act 1987 cases = 10 year longstop date.
Contribution (thru separate cases not Part 20) = 2 years from the
date of any agreement to settle reached between the parties.
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