2) Resolving a dispute through civil claim

Question 1

Factors to consider before issuing proceedings

Answer 1

1) Can the claim be brought at all?
2) Who are the parties?
3) Does the defendant have the means to pay a judgment?
4) What are the merits of the case?
5) What steps must be taken before proceedings are issued?

Question 2

Limitation - Technical defence

Answer 2

If a party has missed the limitation deadline. If the court agrees the claim is statute barred.

Question 3

Limitation - Contract

Answer 3

The basic rule is that the claimant has 6 years from the date of the cause of action. The cause of action accrues as soon as the breach of contract occurs. However the contract might give a short time limit

Question 4

Limitation - Tort - Negligence

Answer 4

The basic rule is that the claimant has 6 years from the date of the cause of action. The cause of action accrues when the tort is committed. In negligence this will be when damage occurs as a result of breach of duty.

Question 5

Limitation - Tort - Personal Injury

Answer 5

The limitation period for personal injury is 3 years which runs from the date of the cause of action or the date of knowledge of the person injured expect for children where the time limit does not start to run until their 18th birthday

Question 6

Limitation - Tort - Hidden damage (Latent damage) in negligence

Answer 6

In a claim based on negligence where the damage is hidden the starting point is the later of:
a) at the date when the damage occurred; or
b) the date on which the claimant first had the knowledge required to bring an action. The limitation period is either:
- 6 years from the date of the cause of action
- 3 years from the date of knowledge of the damage
- no later than 15 years after the date of the negligent act or omission.

Question 7

Multiple defendants

Answer 7

If an employee commits a tort when acting in the course of their employment both the employee and the employer should be sued.
A consumer may have a cause of action against both the retailer and the manufacturer

Question 8

Specified claims

Answer 8

It is specified if it is for a fixed amount of money e.g a debt owed. E.g price of goods sold

Question 9

Unspecified claims

Answer 9

The court will have to conduct an investigation to determine the amount of money payable

Question 10

Starting proceedings before complying with pre-action protocols

Answer 10

A party may issue proceedings to comply with limitation period and then ask the defendant to agree to apply to the court to stay the proceedings so they can comply with pre-action protocols