These are comprehensive, in-depth and brilliant LPC notes that cover the entire Dispute Resolution module including workshop examples.
I used these notes as my main study preparation for workshops as well as revision for final exams. They have been formatted to facilitate easy navigation and quick...
Civil Case Analysis (Workshop 1, Prep Task)
➢ Follow this structure if a question comes up in the exam:
➢ Who is the client?
➢ Who is the opponent?
➢ What is the cause of action?
1. Breach of Contract
Elements to Facts to Prove Available Evidence Evidence Needed
Establish
Contract [Client] and [opponent] entered Copy of the contract if Any further evidence
Existed into an [oral/written] contract written. mentioned in the client’s
[dated]. proof of evidence or
witness statements
Telephone attendance
which we do not
notes/witness statements,
E.g. Joe Bloggs and Heron Ltd currently have.
particularly if the contract is
entered into a written contract
oral.
dated 12th September 2016.
Express The [Client] agreed to [subject of Copy of the contract, if Any further relevant
Terms the contract] by [date] in written, showing the evidence that the terms
consideration of [defendant’s existence of the terms. were included e.g. if the
obligations e.g. payment]. contract is oral, did a
third party overhear the
Telephone attendance client on the phone?
E.g. Under the terms of the notes/witness statements,
contract, Joe Bloggs agreed to particularly if the contract is
supply and deliver a gas cooker to oral.
Heron Ltd on or before 30th
September 2016.
Implied The contract contained terms The relevant statute and a Any further relevant
Terms implied by [statute] that [list the copy of the contract evidence that the terms
terms]. demonstrating that the were included e.g. if the
contract is of a kind into contract is oral, did a
which these terms are third party overhear the
E.g. the contract contained terms implied. client on the phone?
implied by the Supply of Goods
and Service Act 1982 that the:
E.g. Supply of Goods and
Services Act applies to
➢ Cooker would be of contracts for the sale of
satisfactory quality (s4(2)). goods where the property
➢ Cooker would correspond being transferred is “in the
with its description course of business”.
(s3(2)).
, ➢ That the supplier would
carry out the service with
reasonable care and skill. Telephone attendance
(s13). notes/witness statements,
particularly if the contract is
oral.
Breach Describe how the terms in Photographs, witness Any further evidence
question were broken testimony of what went mentioned in the witness
wrong. statements.
E.g. “the cooker caught fire the
first time it was used. The cooker
that was supplied was therefore
not of “satisfactory quality””.
Causation Explain how the breach led to the Repair quotations/invoices Expert reports?
loss which was suffered: – do they indicate damage
by fire?
E.g. “the fire caused damage to
Order cancellations?
the restaurant kitchen and the
Evidence indicating damage
restaurant had to close for repairs
to reputation etc. such as
for two weeks, leading to loss of
newspaper articles?
profits”.
Witness statements from
people affected?
Quantum Explain what the loss is and how Repair quotations/invoices. Accounts indicating how
it was calculated much normal profit
takings might be?
The damage to the kitchen was Witness statements
worth £5,000. The loss of profits which also go to that
came to £10,000. point e.g. from the
company’s accountant or
bank manager.
2. Negligence
Elements to Facts to Prove Available Evidence Evidence Needed
Establish
Duty of Care Explain that a duty of care existed Documentary evidence of
i.e. is there an established duty the relationship between
e.g. doctor/patient, the two parties if it is not an
solicitor/client OR does one exist established duty.
through the Caparo test i.e.
, 1. Was the harm reasonably
foreseeable?
2. Was there a relationship of
proximity
3. Is it is fair, just and reasonable
to impose a duty of care?
Breach of Explain what was done to breach Any evidence of the breach Any further evidence
Duty the duty. E.g. a failure to properly – witness statements, which might be referred
advise, if a solicitor or expert. documentary evidence e.g. to in the witness
if the report failed to statements.
E.g. the claimant, Joe Bloggs, mention the right of way,
purchased a property in the belief the report itself will
it included a right of way. The evidence this.
defendant, Mr Smith, was a
surveyor who failed to mention in
his report that there was no right
of way over the property.
Causation Explain how this caused a loss. Witness statements -
e.g. stating that the
claimant bought the
property in reliance on D’s
report.
Loss Explain what the extent of the Witness statements e.g. the Expert evidence? E.g. on
loss was and that this was claimant would not have quantum – valuation.
reasonably foreseeable. paid as much as he did for
the property if he knew it
did not have a right of way.
Any further evidence which
corroborates this.
Copy of the
Transfer/Contract to show
how much was paid.
Burden of Proof:
, ❖ Burden of proof is on the claimant to show, on the balance of probabilities, that what he is claiming is
true.
Viability, Liability, Quantum (2.5, p21):
❖ Viability –
o Who is the prospective defendant?
o Financial Prospects –
▪ Is the defendant solvent/are his assets traceable/how much are they worth? No point
litigating if they have no money.
▪ Can the client afford to pay? Consider funding options.
o How much time/resources will the client have to commit to pursue the claim? Is this desirable
taking into account the litigation risk? Are there alternative, less costly remedies available?
❖ Liability -
o What is the cause of action?
o What are the legal elements that the client must prove?
o What evidence is there for each element?
o Is the case within statutory limitation periods?
❖ Quantum
o How much is the client likely to obtain?
o What proof do they have of their losses e.g. invoices?
o Consider any issues of remoteness, mitigation, contributory negligence which may reduce
damages awarded.
o Is the amount recoverable worth the client taking on the risk of litigation?
Limitation Periods
❖ The Limitation Act 1980 prescribes fixed periods of time for bringing a claim.
Contract Tort Latent Damage
6 years from the date of breach 6 years from the date of the tort I.e. where damage is not evidence
(s5 Limitation Act 1980). being committed (s2 Limitation at the date of the cause of action.
Act 1980)
3 years from the date of
knowledge if this is later than the
tort date (s14A Limitation Act
1980)
, Funding Options – Workshop 1, Task 2
1. Funding Privately 4. Trade Union Funding
2. Insurance 5. Conditional Fee Agreements (CFAs)
3. Public Funding (i.e. Legal Aid) 6. Damages Based Agreement (DBAs)
Fixed Fees
➢ If a solicitor specifies a fixed fee for a service, he will be “obliged to complete the work, to the ordinary
standard of care, even if it has become unremunerative” – Inventors Friend Ltd v Leathes Prior (a firm)
[2011] EWHC 711 [76]
Fee Agreements
Conditional ❖ Colloquially known as a “no win, no fee agreement”.
Fee ❖ Defined by s58(2)(a) of the Courts and Legal Services Act 1990 (CLSA 1990).
Agreements
(CFA’s) Consequences of the Arrangement:
❖ If the client loses:
2.4.2, p16 - 18 1. They will not have to pay their own solicitor’s legal costs.
2. But will have to pay adverse costs awarded to the other side if the court
orders them to do so.
❖ If the client wins:
1. They will have to pay their own solicitor’s costs.
• However a proportion of these costs may be paid for by the other side
if the court orders them to pay the claimant’s costs. This is rarely,
however, 100% of the client’s costs.
2. They may have to pay a success fee of up to a maximum of 100% of their costs
(limit set by s5, Conditional Fee Agreements Order 2013 (SI 2013/689).
• The success fee is unrecoverable from the other side (Legal Aid,
Sentencing and Punishment of Offenders Act 2012).
Damages ❖ If the client succeeds and recovers damages, his solicitor will be entitled to an
Based amount equal to an agreed percentage of those damages.
Agreements ❖ This amount will cover solicitor’s costs + VAT + counsels fees.
(DBA’s) ❖ It will not cover any disbursements which will be owed on top of this sum.
❖ To be valid, the DBA must meet the requirements of by s58AA(4) of the CLSA 1990:
2.4.4 – p18 – 1. The DBA must be in writing.
19 2. Must not provide for a payment above the “prescribed amount”
• This is set by the Damages-Based Agreements Regulations 2013 (SI
2013/609).
• Solicitor’s costs, + VAT + counsel’s fees can be a maximum of 50%
of the damages award.
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