Summary
Summary Commercial Dispute Resolution WS1 Reading Notes
- Institution
- University Of Law (ULaw)
This document contains a thorough a colourful summary of commercial dispute resolution workshop 1: initial steps and case analysis.
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Some examples from this set of practice questions
1.
What types of claims does the Chancery Division deal with?
Answer: Land law and trusts, intellectual property issues, insolvency and company law.
2.
What is an interim prohibitory injunction?
Answer: Interim prohibitory injunctions are sought in cases where an Applicant wishes to restrain a Respondent from undertaking a particular action pending the trial of the matter.
3.
Why are some interim prohibitory injunctions made without notice?
Answer: They can be made without notice where the case is so urgent that there is no time to give notice, or the claimant reasonably fears that if the defendant had advanced notice it would try and cause the claimant harm
4.
What is the process for making a with notice application for an interim prohibitory injunction?
Answer: issue the claim form and N244 application notice, with supporting evidence (witness statements) and the draft order at least 3 clear days before the hearing fo the application.
5.
why is a cross-undertaking in damages required when a claimant applies for an interim prohibitory injunction?
Answer: The claimant will usually be required to satisfy that they can pay damages to the court if and when asked. In the case that the defendant wins and the court finds that the interim injunction should not have been ordered, the claimant on order will have to pay damages to compensate any loss the defendant suffers as a result of the injunction.
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WS1 - CASE ANALYSIS AND INITIAL STEPSWhat are the clients intentions?
(a) What is the appropriate method of dispute resolution to best achieve the clients aims?
b) Is the client’s priority a quick settlement – possibly to avoid incurring legal costs ‘unnecessarily’?
(c) Does the client want to preserve the business relationship with the other party?
(d) How will the dispute, and possibly the chosen method of resolution, affect relationships with other customers or
suppliers? Clients will not generally want to be seen as a ‘soft touch’.
(e) Will the knowledge that your client is willing to resort to litigation in order to enforce or preserve his rights deter
others from attempting to infringe those rights?
(f ) Is the other party involved in the dispute solvent?
(g) Does the client want the legally correct solution to the dispute, the cheapest solution, the quickest solution, or the
best combination of the three?
COMMERCIAL LITIGATION
THE COMMERICAL COURT commercial and mercantile disputes, and to provide
procedures which would enable those disputes to
be determined justly, expeditiously, and efficiently.
THE ADMIRALITY COURT Based in London, this deals with shipping and
maritime disputes.
CIRCUIT COMMERICAL COURTS + HIGH COURT This was established to deal effectively with
commercial claims where the most convenient
venue is London, but which are less complex or of
smaller value than those claims dealt with in the
Commercial Court.
TECHNOLOGY AND CONSTRCUT COURT (TCC) The appropriate venue for construction and
engineering disputes as well as those of a
‘technical’ nature such as computer disputes.
TCC judge will usually be available – Birmingham,
Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool,
Manchester, Newcastle upon Tyne and Nottingham.
THE CHANCERY DIVISION Claims relating to commercial property or
intellectual property.
BUSINESS AND PROPERTY COURTS OF ENGLAND AND (1) Admiralty Court (QBD)
WALES B&PC’S (2) Business List (Chancery Division)
(3) Commercial Court (QBD). This includes the option to
issue in the London Circuit Commercial Court or those
outside London
(4) Competition List (ChD)
(5) Financial List (ChD/QBD)
(6) Insolvency and Companies List (ChD)
(7) Intellectual Property List (ChD)
(8) Property, Trusts and Probate List (ChD)
(9) Revenue List (ChD)
(10) Technology and Construction Court (QBD)
From 1 October 2018 two new schemes, the
Shorter Trials Scheme and the Flexible Trials
Scheme, have operated in all of these courts. This
follows a three-year pilot in the Rolls Building courts
COMMERICAL LITIGATION CASE ANALYSIS
OVERVIEW (1) Analyse the facts and prepare the chronology
(2) Analyse the legal position
- Identify the cause of action and any defences available
- Consider other parties or claims
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, - Consider where and how proceedings should be issued.
(3) Prepare action list.
How to prepare a chronology:
- Gather relevant facts provided by the client
- Prepare a chronology of events
- Identify further information required
1) Include glossary defining the terms used: e.g investors, properties, trustees. Ensure
to list the terms in alphabetical order.
2) Key players: who are the main parties to the dispute?
- List chronology of events leading to the dispute:
Prepare an action list
o i.e. the steps to be taken to investigate the case further and protect the client’s
position.
CHRONOLOGY Helpful to prepare a glossary defining terms involved in the litigation in alphabetical order.
Helpful to prepare a list of the key parties involved and who they are.
List key events in a table giving a chronology.
LEGAL ANALYSIS What is the cause of action?
o Breach of contract:
Is there a contract?
Written?
Oral?
What are the terms?
Implied terms under the SGSA 1982 and SOGA 1989.
Have they been breached?
Remedies
Damages
Rescission
o Negligence:
Did one party owe another a duty of care?
Has the duty been breached?
Has it caused loss?
o Negligent Misstatement:
Wronged party must show they have:
Acted upon negligent advice given by the other party.
That it was reasonable to rely upon this advice, and
That the party giving the advice knew or should have known that they
would rely upon the advice.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
o Misrepresentation:
Only available where there is a contract.
One of the parties must have made a false representation which induces
the other party to enter into the contract.
Wronged party may be entitled to rescind the contract and/or damages.
o Breach of fiduciary/other duty:
Applies to partners; company directors; trustees.
E.g., duty not to make a secret profit; duty not to allow personal interests to
conflict.
Statutory duties include the Partnerships Act 1890, Companies Act 2006.
o Nuisance and trespass:
Is a neighbouring property causing an unreasonable interference with the
claimant’s use and enjoyment with their land?
Has another party intruded upon their land without permission?
Damages and injunctions available.
o Conversion and trespass to goods
Conversion is a tort committed where another party does something
inconsistent with the ownership rights of a client e.g. removing goods from
the client’s premises.
Trespass to goods occurs where a party uses goods belonging to another
party without permission.
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