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Exam Ready Notes for First-Term Module 'Dispute Resolution'. These...
, Always Apply to the Facts, and Give Advice/Conclude
Breach of Contract Negligence Misrepresentation Negligent Misstatement
Contract exists Duty of care False statement of Duty of care
Implied/express term Breach of duty fact between parties
Breach Causation Relied upon False statement by X
Consequences Loss Induced other party to Y
Loss Mitigation into contract Reliance on
Remoteness Remoteness Causation statement by Y
Mitigation Loss Loss
Mitigation Mitigation
Remoteness Remoteness
Difference the two = Misrepresentation requires a contract;
negligent misstatement only requires a DoC (higher evidential
burden for Claimant)
Timeline for Entire Multi-Track Case
Who does it?
Pre- Initial instructions:
Commencement Pre-action steps: conduct, identify client’s objectives, locate parties,
check financial viability of D, check jurisdiction, ascertain limitation
periods, discuss funding, preserve evidence, legal research, case
analysis, letter of advice to client, comply with PD-PAC/PN-PAP,
keep client informed, consider part 36 offer.
Important = Case analysis (on-going)
o Potential causes of action, factual issues, success
likelihood, further evidence needed
Commencement Letter before claim (C’s Solicitors D’s Solicitors), presents C’s case to D.
of Action D may write a letter of response
Statements of case:
C files and serves N1 Claim Form to issue proceedings with PoC attached or to follow.
C serves Particulars of Claim, setting out Legal and Factual basis of Claim
o In response, D can:
File Acknowledgment of Service within 14 days (extending deadline for filing Defence to
28days from deemed date of service of PoC)
File Defence
Do nothing (see Default Judgment)
D serves Defence
o Admit, deny, not admit – establishes issues in dispute
o D may serve a Counterclaim alongside the Defence (same format as C’s PoC)
C serves Reply to D’s Defence, and a Counterclaim to D’s Reply
Either C or D can make a Part 18 Request for Information, seeking clarification.
Allocation:
Court preliminarily allocates case to Multi-Track
Notice of Proposed Allocation (sent once Defence has been filed by D) requires parties to file their DQs (Form
N181)
o Since the case is multi-track, the parties will also need to submit alongside their DQ:
Costs budget (agreed if possible)
Case summary (agreed if possible)
Budget discussion report
Disclosure report
Draft order for directions (agreed if possible)
Interim Matters Case summary (for CMC) follow structure in PD29 5.7(1) Prepared by C Agreed with D if
possible
Following submission of Budget Discussion Reports, court could impose a
Costs Management Order (CMO).
Court will either:
Give order for directions; or
Call a CMC to discuss how to proceed (‘hands on approach’
Order directions for CMC where directions were given (set out timeline).
CMC is where ‘hands-on’ approach is required
When disclosure order is made, parties use Form N265:
Reasonable search
Documents that meet CPR 31.6
Serve on opponent
If opponent’s list is incomplete you may apply for an order of
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, Always Apply to the Facts, and Give Advice/Conclude
Specific Disclosure, or order of Specific Inspection.
On-going responsibility to disclose (PD 31A 3.3)
o Additional disclosure done by a supplemental list
Draft witness statements (remember hearsay notice requirements)
Get expert reports Made by C’s And D’s experts
Exchange and narrow down issues experts
Without prejudice experts meeting
Any agreement which varies (inadvertently or otherwise) any of the Made by C Or made by D
following dates, must be consented to by the court (CPR 29.5):
CMC
Pre-Trial Review
Return of Pre-Trial Checklist
Trial
Trial Period
Trial Pre-Trial review (court encourages parties to settle)
Not always done, especially if timetable accelerated or if it’s a
small claim
Brief to counsel Done by C And D
Case summary (skeleton argument) for trial Prepared by C Approved by D
Trial itself
Post-Trial Appeal
Assessment of costs
Enforcement of judgment
Occur at any The following can take place at any time:
time after Interim applications
commencement, o After proceedings start, but before trial
but before trial Part 36 Offers/Acceptance
o Any time up to trial, without prejudice save as to costs
Tomlin Orders
o Any time pauses trial on agreed terms
D has no real prospect of successfully defending this claim, and there is no other compelling reason why
this claim should go to trial.
The Overriding Objective
Who the OO applies to The OO must be kept in mind by the court (CPR 1.2), the parties and their legal
advisors (CPR 1.3). Each party must help the court further the OO but owes no
duty to their opponent.
What the OO states The OO, which must be kept in mind at all times, is to enable the court to deal
with cases justly and at proportionate cost.
This involves, so far as is practicable:
(1) Ensuring that the parties are on an equal footing
(2) Saving expense
(3) Dealing with the case in ways which are proportionate to:
The amount of money involved;
The importance of the case;
The complexity of the issues; and
The financial position of each party
(4) Ensuring that it is dealt with expeditiously and fairly
(5) Allotting to it an appropriate share of the court’s resources (considering
the need to allot resources to other cases)
Note: the court may alter its own procedure to ‘deal with cases justly’ (e.g. allow
a claimant more time to perform tasks), but it will not directly interfere with the
nature of either party’s legal representation. The court cannot order that a
particular client receive legal aid either.
(Pre-Commencement) Pre-Action Steps
Pre-Commencement (Pre-Action) Steps
Check who is the actual client and whether the person you are speaking to has authorisation to act on
3
, Always Apply to the Facts, and Give Advice/Conclude
their behalf
o You may have to pay for any stops taken without proper authority.
Complete conflict of interest (Outcome 3.5), confidentiality (Outcome 4.1)
Complete money laundering checks by verifying two identification documents
Discuss client’s objectives, for example, identify the quantum of the claim
o Breach of contract quantum = difference between what X paid, and what X would have paid if
there was no breach.
Identify, locate and determine the financial status of prospective parties
See if the UK has jurisdiction on the matter
Ascertain limitation period:
Contract 6 years from when breach occurred (typically when
the goods were delivered) or from when the
intention of one party not to perform is made clear,
12 years for a deed
Tort (Negligence) 6 years from when the tort is committed
Latent Damage (when damage is not 3 from the date of knowledge, with a long-stop of 15
apparent on the date of the cause of action years.
– Negligence)
Misrepresentation 6 years from when the tort is committed
Negligent Misstatement 6 years from when the tort is committed
Note: there might be a clause varying the limitation
period in the contract itself
Discuss funding with client
o Private funding
o Before the event insurance
o Public funding
o Trade union funding
o Conditional Fee Agreements (CFAs) – see Discussing Funding with a Client below.
o Damages Based Agreements (DBAs) – see Discussing Funding with a Client below.
Collect and preserve (tell client to not destroy anything) evidence (witness statements, documents, etc)
Complete a case analysis
Write a letter to the client summarising your analysis and advising on options
Explore methods of ADR with client
Comply with PD-PAC/PN-PAP requirements (see below)
Keep the client informed
Consider a Part 36 offer (Settlement)
Completing a Case Analysis
Application is vital in these questions. The structure of an exam question should be:
State what element of the Example 1 Duty of Care
claim you’re pursuing Example 2 Remoteness
State what needs to be Example 1 that a Duty of Care existed
established to prove the Example 2 The loss was in the reasonable contemplation of the parties
element
State what evidence is Example 1 Documentary evidence proves that the Duty of Care existed
currently available to prove the Example 2 There are phone records showing that both parties were
elements aware that if X was late then the Claimant would lose
money
State what evidence should be Example 1 [Character in the Facts] has further information regarding
obtained to prove the elements the Duty of Care between the Claimant and Defendant, we
need them to evidence this.
Example 2 [Character in Facts] has further information regarding the
knowledge of the Defendant regarding the losses which
would flow from breach, we need them to evidence this.
4
, Always Apply to the Facts, and Give Advice/Conclude
You state what element of the case you are pursuing (from the ‘Elements to Prove’ columns below), what
needs to be established, what evidence is (currently) available to establish this, and what evidence might be
gathered (applying it to the facts), and why those pieces of evidence prove the element you’re trying to
establish.
Case Analysis: Breach of Contract
Identify Parties Client: [Name]
Opponent: [Name]
Cause of Action This is a claim for a breach of a written contract on [Date] between [Client] and
[Opponent] to [Action].
State the terms of the contract briefly.
Limitation Issues Breach of Contract Limitation Period: 6 years after the cause of action
occurred (LA1980 s5)
However, if anticipatory breach then the timer starts when the
intention not to perform the contract was made clear, not when the
performance was due.
Elements to Facts to establish Available evidence Evidence to obtain
prove
Contract That there was an [Oral/Written] -Copy of the written -Any relevant
Exists Contract between [Client] and contract documentation
[Opponent] to [Do X]. -Phone records for oral
contract Apply to the facts
“On 12th December, Barry agreed in -Written statements
writing with Tom to supply and
install a window on or before the Apply to the facts
20th December for £600”
Implied/Expre That there were implied or express -Sale of Goods Act 1979 -Unlikely to be
ss Terms terms in the above Contract. -Supply of Goods and disputed
Services Act 1982
-The express terms will be in the -Express terms in the Apply to the facts
facts. Contract
-The implied terms are:
s14(2) SGA – satisfactory quality, Apply to the facts
according to the reasonable person.
s14(2B) SGA – fitness for purpose
s4 SGSA – good made during a
service will be of satisfactory
quality and fit for purpose.
s13 SGSA – service provided will be
of reasonable care and skill.
Breach That the terms of the contract -Anything that indicates -Anything that
above were breached. breach of terms (e.g. CCTV, indicates breach of
Photographs, Expert terms (e.g. CCTV,
Do not describe the actual Reports, Sample of Photographs, Expert
consequences of the breach yet. Defective Item, Quality Reports, Sample of
Control Reports) Defective Item,
“The window ledges weren’t Quality Control
sanded down properly during Make sure the evidence Reports)
installation. This was a breach of cited relates to the breach,
the term that the window not the consequences (i.e. -Typically evidenced
installation would be provided with Flaking Portrait). by an Experts Report
reasonable care and skill”
Apply to the facts Apply to the facts
Consequence That the breach of the contract -Anything that evidences -Anything that
above had consequences. the consequences evidences the
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