- LPC Dispute Resolution (Civil & Criminal) Exam notes (Electronic word-processed copy)
- Suitable for students studying the LPC at the University of Law, BPP & all other universities
- Detailed notes in all subject areas covered in the DR/Civil/Criminal module.
- Includes Model Answers for Exam s...
, CASE ANALYSIS BREACH OF CONTRACT
IDENTIFY PARTIES Identify client: [NAME]
Identify Opponent: [NAME]
CAUSE OF ACTION State “this is a claim for a breach of a written contract made on [DATE] for [COMPANY]
Ltd to do [ACTION]”
Basic: Claimant has 6 years from the date when the cause of action accrued
LIMITATION ISSUES Accrued: as soon as the breach of contract occurs. With an anticipatory breach of
contract, the cause of action accrues when the intention not to perform the contract is
made clear, and not at later date when performance was due (Honchester)
ELEMENTS TO FACTS TO ESTABLISH AVAILABLE EVIDENCE EVIDENCE TO OBTAIN
ESTABLISH
There was an oral or written We have a copy of the Copies of any previous
contract between C and D to written contract contracts
CONTRACT [WHAT CONTRACT WAS FOR, [DATED] Anything to establish
EXISTS DATES, AND DETAILS] There is a telephone previous course of
memorandum proving it dealings
Be as specific as possible here, Witness statements Letters, emails, phone
including full details logs [CHECK FACTS]
SGA 1979
s14(2): satisfactory quality
s14(2A): regarded satisfactory by
a reasonable person
s14(2B): state and condition and
fitness for purpose for which it is SGA
IMPLIED/EXPRESS likely to be used SGSA
TERM S14(3): reasonably fit for purpose Express terms Witness statements
Notes of
SGSA 1982 correspondence
s4: goods transferred in course of Unlikely to be disputed
business will be of satisfactory
quality and reasonably fit for
purpose
s13: service supplied will be of
reasonable care and skill
Examples of the items Witness statements
Describe how any of the terms themselves [NAME] Expert reports
above were breached. Be specific Any photographs of CCTV installation
BREACH and apply the facts as much as them Photographs
possible Expert evidence [NAME] Statements from
Internal reports [BY] consumers
Quality control person Example of process
Briefly explain and clearly state
how the above breach caused the
loss Receipts
Order cancellations
CAUSING LOSS “That the breach described Accounts drawn up Loss of bargain
above caused a loss of [AMOUNT] Letters, emails,
because there was a need to telephone
[ACTION] and we lost out on large Accounts from external
profits as [MISSED OUT]/and we
will now have to [SORT OUT]”
AMOUNT OF LOSS “The amount of loss and damage, N/A N/A
AND DAMAGE namely [WHAT] costing [PRICE]”
Say that the loss was within the
reasonable contemplation of both
parties at the time the contract
was made and that the loss was a Telephone conversation
probable consequence of the specifying that the sale N/A
REMOTENESS breach. of [ITEMS] must
coincide with [EVENT]
Damages should be awarded as
per Hadley v Baxendale (naturally
flowing from the breach)
2
, If asked to prepare as a memo, use clear headings, an introduction, numbering, and a sign off
3
, CASE ANALYSIS NEGLIGENCE
IDENTIFY PARTIES Identify client: [NAME]
Identify Opponent: [NAME]
CAUSE OF ACTION State “this is a negligence claim for [ACTION]”
Basic: Claimant has 6 years from the date when the cause of action accrued
LIMITATION ISSUES Accrued: when the tort is committed. The cause of action accrues only when some
damage occurs. This may be at a date considerably later than that when the breach of
duty itself occurred
ELEMENTS TO FACTS TO ESTABLISH AVAILABLE EVIDENCE EVIDENCE TO OBTAIN
ESTABLISH
That there was a duty of care
owed, either an established one Usually available from If the duty is to be
(doctor / patient, solicitor / documentary evidence established, this is not
DUTY OF CARE client) or through the Caparo Test Consider CCTV to show likely to be disputed
(harm reasonably foreseeable, actions
proximate relationship, fair, just
and reasonable)
Anything that
Consider eye witnesses indicates that D knew
Must show that the person Correspondence or ought to have
breached the duty that they between C and D may known that C believed
BREACH OF DUTY owed. Apply to the facts and mention relevant that they were not in
state what must be shown information breach
This will be a key CCTV/video of
disputed area [EVENTS]
Expert evidence
May not be disputed
Must show that the D’s breach of C’s statement that they unless D claims it
duty caused loss to your client, C did [ACTION] in never happened
CAUSATION reliance on D’s report/ Consider if C can
“By [ACTION], the client suffered statement credibly show they
financial loss and/or personal Consider if there are would not have done
injury” any eye witnesses [ACTION] if they had
not relied on D’s
report/statement
C has suffered loss of a type
which was reasonably foreseeable C will state that the Get expert evidence
LOSS by the D. Explain the type of loss loss suffered was a to confirm the loss
and how it is related (state that it type of loss reasonable claimed
was foreseeable that this type of foreseeable
loss would be incurred due to
[ACTION])
4
, PD ON PRE-ACTION CONDUCT
Pre-Action Conduct Protocol paragraph 4.2: parties must comply with this PD
Non-compliance can lead to sanctions under paragraph 4.6:
COMPLIANCE Party at fault to pay all/some opponent’s costs
Interest is reduced on damages awarded
Interest payable is increased on damages to pay up to 10% above base rate
SPECIALIST Specialist Protocol for PI, Clinical Dispute, construction/engineering, defamation,
PROTOCOL professional negligence (below), judicial review, disease and illness, disrepair,
rent/mortgage arrears
PD OF PRE-ACTION CONDUCT PROFESSIONAL NEGLIGENCE PRE-ACTION
PROTOCOL PROTOCOL
Paragraph 2: C send a Letter B1: C gives preliminary notice of claim
Before Claim
B2: C sends a Letter of Claim
Must identify all other parties (B2.2(a))
Paragraph 3: D must acknowledge Confirm if expert appointed (B2.2(f))
(usually within 14 days) Need only a general estimate of any
financial loss (B2.2(e))
Must forward the letter of their
insurance company (B2.2(g))
STEPS TO TAKE Date for responses are different, usually
within 21 days (B1.4 and B3.1)
Paragraph 4: D sends full response
within period requested in the B4: D investigates claim
Letter Before Claim (usually within
30 days)
Paragraph 5: C replies B5: D sends a letter of response and/or a
letter of settlement
B5.5: if D totally denies claim and offers no
Paragraph 6: parties take stock settlement, C begins proceedings
Negotiations (paragraph 8.2(1))
Mediation (paragraph 8.2(2)) B5.6: if claim is admitted in whole or in part
Appoint experts (paragraph C) and settlement is offered (negotiations
under B5.6 or ADR (B6))
5
, DATE OF SERVICE & TIMINGS
CLAIM FORMS
Claim form deemed served on 2nd business day regardless of how served (1 business day between)
“Business Day” any day except weekends, bank holidays, Good Friday or Christmas (CPR 6.2(b))
CPR 2.8: if the deadline for doing an act ends on a day when the court office is closed, then the deadline is
the end of the first day when the office is next open
STATEMENTS OF CASE
METHOD OF SERVICE DEEMED DATE OF SERVICE (CPR 6.26)
First class post and The 2nd day (include weekends) after it was posted, left with, delivered to or
Document Exchange (DX) collected by the relevant service provider provided that day is a business day
If not, the next business day after that day
If it is delivered to or left at the permitted address on a business day before 4.30pm,
Delivering to or leaving at a it is deemed to be served on that day
permitted address If not, on the next business day after that day
If it is transmitted on a business day before 4.30pm, it is deemed to be served on
Fax / email / personal that day
service If not, on the next business day after that day on which it was transmitted
OTHER TIMINGS
Where deadline for filing defence is close of that day, the claimant can legitimately enter default judgment on the
following business day
Claim form served with Particulars of Claim: enter default judgment 15th day after deemed served of Claim Form
Particulars served after claim form: enter default judgment 15th day after deemed service of Particulars of Claim
Where acknowledgment of service of Particulars received, defence can be filed up to 28 days after service of
Particulars of Claim
STATEMENTS OF TRUTH
For written question regarding Statement of Truth and signing (due to absences), go
NOTE through each of the below (and refer to CPR)
All Statements of Case must be verified by a Statement of Truth (CPR 22.1(1)(a))
This includes Particulars of Claim, Defence, Counter-Claim, response to Part 18 request,
witness statement, a certificate of service and any other document where a rule or PD
REQUIRED BY requires such
CPR 22.1(2): where statement of case amended, amendments must be verified by
statement of truth
CPR 22.1(3): if wish to rely on application notice as evidence, must verify application
notice by statement of truth
NO STATEMENT OF Without a Statement of Truth, the party cannot rely on its contents and the court may
TRUTH strike it out (PD 22 paragraph 4) (CPR 22.2(2))
Those that can sign the Statement of Truth:
Company’s senior personnel, (where on behalf of company) provided they have
sufficient knowledge of the matters contained (PD 22 paragraph 3.4)
Company’s solicitor “The claimant believes that the facts stated in these Particulars
of Claim are true. I am duly authorised by the Claimant to sign this statement [and
SIGNING STATEMENT state position held in Company]”
OF TRUTH Individual Claimant “I believe the facts stated in these Particulars of Claim are true”
Solicitor in their own name, not the firm’s name (PD 22 paragraph 3.10)
Solicitor must tell the Claimant that by signing it, the Claimant could be in
contempt of court if they do not have an honest belief in those facts (PD 22
paragraph 3.7 & 3.8)
Requires consent of the Claimant, who must believe the facts in it
“The Claimant believes that the facts stated in these Particulars of Claim are
true. I am duly authorised by the Claimant to sign this statement as the
Claimant’s solicitor.”
If you sign Statement of Truth and know it to be false, could face Contempt of Court
FALSE STATEMENT (CPR 32.14)
If asked to speak to other side regarding a case
CONDUCT O11.1 not to take advantage of 3rd parties
IB11.4 don’t communicate direct with 3rd party if legally represented
6
, CLAIMING INTEREST
CONTRACT TORT
SHOULD BE AN EXPRESS S35A SCA 1981 FOR HIGH
PROVISION IN CONTRACT NON-COMMERCIAL COURT CASES
IF NOT, FOLLOW S69 CCA 1984 FOR
COUNTY COURT
COMMERCIAL
LATE PAYMENT OF
COMMERCIAL DEBTS
INTEREST ACT
DAILY RATE = (OUTSTANDING SUM X CONTRACT RATE) / 365
LIMITATION AND STARTING
6 years from the date the breach of contract occurs
CONTRACT With an anticipatory breach of contract, cause of action accrues when the intention not
to perform the contract is made clear, and not at later date when performance was due
6 years from the date when the tort is committed
TORT The cause of action accrues only when some damage occurs
This may be at a date considerably later than that when the breach of duty itself occurred
3 years from the date of knowledge of damage
LATENT DAMAGE There is a longstop of 15 years
CONSIDER HIGH COURT (PD 7 PARAGRAPH 2.4)
Y
FINANCIAL VALUE, COMPLEXITY, PUBLIC IMPORTANCE
WHETHER VALUE OF IF NONE OF THE ABOVE, USE C. IF £50,000+ USE HC
CLAIM > £25,000 (PD
7A PARAGRAPH 2.1)
USE COUNTY COURT
N
7
, PARTICULARS OF CLAIM
They are a statement of case
GENERAL They can be amended several times before trial
They can be served with or after the claim form (see dates of service notes)
If served separately from the claim form, they must contain Claimant’s address
for service
Refer to precedent bank for drafting particulars of claim
1) Court Heading
2) The claim number
3) Parties involved [NAME & CLAIMANT/DEFENDANT]
4) Heading of ‘Particulars of Claim’
5) Status of the Claimant and Defendant
Information about parties, type of business and what they do
6) Type of contract
Whether written or oral
DRAFTING
When contract was made and what it stated
PARTICULARS OF
Attach a copy
CLAIM 7) Express terms of the contract that were breached
8) Implied terms of the contract that were breached
9) The part of the contract that has been purportedly performed
10) Allegations of breach of contract
First state generally the allegation of breach of contract
Then head ‘Particulars of Breach’ and outline each and every breach
that occurred
11) Consequences of breach
What the client did as a result of D’s breach
Whether they incurred any extra costs
Whether someone was not paid due to breach
Consider loss of profits
12) Allegation of loss
By reason of the breaches of the contract, the Claimant has
suffered damage and loss
Heading ‘Particulars of Damage and Loss’ and outline specifics
13) Interest (see notes)
14) Statement of Truth (see above notes)
“The Claimant believes that the facts stated in these Particulars of
Claim are true. I am duly authorised by the Claimant to make this
statement”
15) Signed and dated by the solicitors
State concisely the facts upon which Claimant is relying
Where the claim is based on a written agreement, the claimant must include a
copy of the agreement, and the originals should be available at the hearing. (PD
WRITTEN / ORAL 16 paragraph 7.3) Any general incorporated conditions of sale should be included
Where the claim is based upon an oral agreement, the particulars should set out
the contractual words used and state by whom, to whom, when and where they
were spoken (PD 16 paragraph 7.4)
8
, DEFAULT JUDGMENT & SETTING ASIDE
DEFAULT JUDGMENTS AND SETTING ASIDE (CPR 12 & 13)
Judgement without trial where a defendant has failed to file an acknowledgment of service
GENERAL or has failed to file a defence
Cannot enter into a default judgment for the following:
CANNOT ENTER Claim for delivery of goods
DEFAULT Part 8 claim
JUDGMENT Mortgage claim
Claim for provision damages
Claim in a specialised court
As soon as you become aware of the default judgment, apply to set it aside (court expects
you to act promptly and delay will have to be explained)
Application Notice Form N244, supported by evidence (such as witness statement from
defendant and draft defence)
PROCEDURE Claimant will satisfy the court (in its application) that:
i) The Particulars of Claim have been served on the defendant
ii) The defendant has not acknowledged service/filed defence in time
iii) The defendant has not satisfied the claim
iv) The defendant has not admitted liability for the full amount
Interest is calculated at the daily rate
MANDATORY CPR 13.2: the court must set aside the default judgment if:
GROUNDS FOR a) The defendant has satisfied the whole claim (paid up in full) (CPR 13.2(1))
SETTING ASIDE b) It was wrongly entered into (CPR 13.2(3))
DISCRETIONARY CPR 13.3(1): the court may set aside or vary a default judgment where:
GROUNDS FOR a) Defendant has a ‘real prospect’ of defending the claim (realistic defence) (CPR 13.3(1)(a))
SETTING ASIDE b) There is some other ‘good reason’ why judgment should be set aside/varied (CPR 13.3(1)
(b))
When submitting an application to set aside, you would attach a draft defence to show the
COURTS CONSIDER outline of your basis of claim
The promptness of defendant’s application to set aside (r13.3(2))
Any evidence to show why they didn’t respond to the claimant
DEFENDANT APPLIES TO SET ASIDE DEFAULT JUDGMENT
GRANTED GRANTED ON GRANTED ON CONDITIONAL APPLICATION
ON DISCRETIONAR DISCRETIONAR ORDER MADE DISMISSED
MANDATOR Y ‘GOOD Y ‘REALISTIC
Y GROUNDS REASON’ DEFENCE’
COSTS
GROUND GROUND
D’S COSTS, COSTS IN THE C’S COSTS, C’S COSTS, C’S COSTS,
SUMMARILY CASE SUMMARILY SUMMARILY SUMMARILY
ASSESSED (C (NEITHER ASSESSED (D ASSESSED ASSESSED
AT FAULT PARTY AT AT FAULT FOR
FOR FAULT) FAILING TO
ENTERING DEAL WITH
JUDGMENT) PROCEEDING)
Defendant’s costs = claimant pays
Claimant’s costs = defendant pays
9
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