DISPUTE RESOLUTION – PRE-ACTION STEPS
Outcomes
1. Be able to carry out initial steps in a dispute resolution matter, including case analysis.
2. Understand and be able to explain alternative methods of dispute resolution, and their appropriateness
on a given set of facts.
3. Understand and be able to explain funding options in a dispute resolution matter.
4. Understand the requirements and effect of the Practice Direction – Pre-Action Conduct and Protocols
and the Professional Negligence Pre-Action Protocol.
Unit Workshop Tasks
1. Review the Unit Workshop Preparatory Task.
2. Consider the most appropriate means of dispute resolution on a given set of facts.
3. Explain to a client the various funding options that are available in a dispute resolution matter.
4. Address a professional conduct issue.
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, LO1 – CASE ANALYSIS
Ch 1 p9, 1.4
o Who is the client (Claimant)?
o Who is the opponent (Defendant)?
o What is the cause of action?
CAUSE OF ACTION: Breach of contract
NB:// another example on PAGE 10 to print
Elements to Prove Facts to Prove Available Evidence Evidence to Obtain
Details of the There was an oral or written contract between C and D Copy of the contract if written. → Copies of any previous contracts
Contract to [WHAT CONTRACT WAS FOR, DATES, AND → Anything to establish previous course of dealings
[Note: its formation DETAILS] Telephone attendance notes/witness → Letters, emails, phone logs [CHECK FACTS]
– parties, date, statements, particularly if the contract is oral.
written or oral, [Client] and [defendant] entered into an [oral/written]
subject matter contract [dated].
(goods, goods and
services/materials Be as specific as possible here, including full
and work, services), details. If already in possession of the contract, then state
consideration] e.g., Written contract between Clarkes and DMS “None required”
i.e., Clarkes and DMS entered into a Printing dated 2nd February xx18
agreement on 2nd February xx18
Express The [Client] agreed to [subject of the contract] by [date] Copy of the contract, if written, showing the Any further relevant evidence that the terms were
Terms in consideration of [defendant’s obligations e.g., existence of the terms. included e.g., if the contract is oral, did a third party
payment]. overhear the client on the phone?
[Note: it is relevant Telephone attendance notes/witness
to establish these, statements, particularly if the contract is oral.
even though on the
facts no breach will
be alleged]
i.e., DMS agreed to print and bind and deliver 500,000 If already in possession of the contract, then state
copies of ‘A Striker’s Dream’ by 26th May xx18 at a “None required”
price of £325,000 inclusive of VAT payable
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,Implied The contract contained terms implied by [statute] that The relevant statute and a copy of the contract Any further relevant evidence that the terms were
Terms [list the terms]. demonstrating that the contract is of a kind into included e.g., if the contract is oral, did a third party
which these terms are implied. overhear the client on the phone?
Sale of Goods Act 1979
s14(2): satisfactory quality E.g., Supply of Goods and Services Act applies
s14(2A): regarded satisfactory by a reasonable person to contracts for the sale of goods where the
s14(2B): state and condition and fitness for purpose for property being transferred is “in the course of
which it is likely to be used business”.
S14(3): reasonably fit for purpose
Supply of Goods and Services Act 1982
s4: goods transferred in course of business will be of
satisfactory quality and reasonably fit for purpose
s13: service supplied will be of reasonable care and
skill
Breach Describe how any of the terms above were breached. ✓ Examples of the items themselves [NAME] → Witness statements
(of terms – express ✓ Any photographs of them → Expert reports
and implied) Be specific and apply the facts as much as possible. ✓ Expert evidence [NAME] → CCTV installation
✓ Internal reports [BY] → Photographs
e.g., The books were not of satisfactory quality. They ✓ Quality control person → Statements from consumers
were not printed using reasonable ✓ Witness statements → Example of process
care and skill. The glossy laminated covers were
wrinkled and had come away from the hard cover.
▪ s13 SGSA reasonable care and skill of the
supplier
▪ s4(2) SGSA satisfactory quality
▪ s5(2)(a) match the sample
Causation Briefly explain and clearly state how the above breach Repair quotations/invoices – do they indicate → Receipts/purchase proof
Factual caused the loss damage by fire? → Order cancellations
Consequence Order cancellations? Evidence indicating → Loss of bargain
(of breach) “That the breach described above caused a loss of damage to reputation etc. such as newspaper → Letters, emails, telephone
[AMOUNT] because there was a need to [ACTION] and articles? → Accounts from external
we lost out on large profits as [MISSED OUT]/and we Witness statements from people affected.
will now have to [SORT OUT]” Accounts drawn up
e.g., The distributed Finished Books were withdrawn
from sale and most of the copies were donated to
charity. Clarke had to instruct another printing and
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, binding company – International Printing London Ltd
(IPL) to print 500,000 copies of the biography. This
meant Clarke incurred significant extra costs, and the
biographies were put on sale 6 weeks after Shooting
Star had aired.
Remoteness Say that the loss was within the reasonable Telephone conversation/term of contract
(the damage is not contemplation of both parties at the time the contract specifying that the sale of [ITEMS] must
linked to the was made, and that the loss was a probable coincide with [EVENT]
breach itself) consequence of the breach.
Damages should be awarded as per Hadley v
Baxendale (naturally flowing from the breach)
Damage and Loss “The amount of loss and damage, namely [WHAT] e.g., Accounts department have documents → Accounts drawn up
costing [PRICE]” showing the loss of profit. → New contract?
Contract showing the new printing agreement → Correspondence and possible negotiations with
Always think about total estimated loss: how with International Printing London. other suppliers to show C tried to negotiate the
much more money they’ve paid in comparison best price.
to what they have paid (this is what they can
try and claim back)
Difficult to claim for loss of reputation, leave it out – too
difficult to quantify (raise in letter for advice, but
mention cannot claim)
Mitigation? Client needs to prove they mitigated costs. ✓ → May be proof of negotiation on costs
→ Quotes from other companies
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