8.2 Building a claim

Question 1

What are the building blocks in a case analysis?

Answer 1

Parties → Facts → Cause(s) of action → Evidence → Jurisdiction / Governing Law → Limitation → Remedies → Enforcement → Prospects of Success

Question 2

What are some common examples of parties to legal proceedings?

Answer 2

Individuals in their personal capacity
Companies
Limited Liability Partnerships
General Partnerships / “Firms”
The Crown
Individuals in their capacity as office holders, such as liquidators, trustees in bankruptcy administrators of an estate
Individual and corporate trustees (not a trust - a trust does not have any legal personality)

Question 3

What are some practical considerations to look at during a case analysis?

Answer 3

Location or solvency of potential defendants - could help determine which causes of action are pursued against which parties

Question 4

What is a ‘cause of action’?

Answer 4

A cause that gives rise to a legal claim

Question 5

What are some examples of causes of action?

Answer 5

Breach of contract
Negligence
Misrepresentation
Nuisance
Trespass to land or to goods
Infringement of intellectual property rights
Defamation / malicious falsehood
Unjust enrichment
Various economic torts
Various claims under statute

Question 6

What elements should considered for a breach of contract analysis?

Answer 6

1. Contract: There must be a contractual relationship between the parties. N.B: this can be a written or oral contract.
2. Terms: What are the terms of the contract? Consider express terms and any implied terms by law.
3. Breach: Which, if any, terms have been breached? Are they easily identifiable as either a condition, a warranty or an innominate (intermediate) term? This will be relevant to the potential remedies for breach.
4. Defences: Are there clauses in the contract that attempt to limit or exclude liability. How are they enforceable?

Question 7

What elements should considered for a negligence claim?

Answer 7

Negligence: Tort - breach of a legal duty of care which results in damage to the injured party.

1. Duty of care: Was a duty of care owed to the claimant by the defendant? Consider the scope of the duty in question and whether it covers the facts of the case.
2. Breach: Was there a breach of that duty by D?
3. Damage: Was there any damage/loss incurred by C?
4. Causation: Was there causation between the breach by D and the damage/loss? For the chain of causation to be broken, any novus actus interveniens must have been unforeseeable.
5. Remoteness: Was the damage caused reasonably foreseeable? If so it should be recoverable.
6. Defences: Contractual limitations or exclusions on liability, failure to mitigate loss, contributory negligence

Question 8

What elements should be considered during the evidence analysis of a case?

Answer 8

• Considering what evidence the client has already provided in support of the cause of action.
• What evidence the other side has already provided.
• What further evidence might the other side or third party have or been able to obtain.
• What evidence does the client need to provide to establish/prove their case.
• What further evidence may arise that could weaken your client’s case.

Question 9

What is meant by a limitation period?

Answer 9

Most causes of action expire after a set period of time. If a claim is not issued with the court before the expiry of the relevant limitation period, it is time-barred.

Question 10

What is the limitation period for a breach of contract (simple contract)?

Answer 10

6 years from the breach of contract

Question 11

What is the limitation period for a breach of contract (deed)?

Answer 11

12 years from the breach of contract

Question 12

What is the limitation period for an action pursuant to Misrepresentation Act 1967 s2(1)?

Answer 12

6 years from the date of any loss/damage suffered

Question 13

What is the limitation period for personal injury caused by negligence?

Answer 13

3 years from the date any loss/damage was suffered

Question 14

What is the limitation period for latent damage caused by negligence?

Answer 14

6 years from the date any loss/damage was suffered

If the damage is found later, it is 3 years from the date of knowledge and a 15-year long stop from the date of the negligent act/omission

Question 15

What is the limitation period for defamation of malicious falsehood?

Answer 15

1 year from the date any loss/damage was suffered

Question 16

What is the limitation period for a claim against a trustee in respect of fraud or fraudulent breach of trust?

Answer 16

Unlimited

Question 17

What is the limitation period for a claim against a trustee to recover trust property or the proceeds of trust property from the trustee?

Answer 17

Unlimited

Question 18

What is the limitation period for other breach of trust claims?

Answer 18

6 years from the date of breach

Question 19

What is the limitation period for claims in respect of defective products under the Consumer Protection Act 1987?

Answer 19

3 years from the date any loss/damage was suffered
If loss/damage is found later, it is 3 years from the date of knowledge of certain material facts and a long stop of 10 years from the date the defendant put the product into circulation

Question 20

What is the limitation period for claims against public authorities under s6 of the HRA 1998?

Answer 20

1 year - can be extended by the court

Question 21

What is the limitation period for judicial review proceedings?

Answer 21

CPR applies a time limit of 3 months (CPR r54.5)

Question 22

What rule applies for the limitation period when there is fraud, deliberate concealment or mistake?

Answer 22

The limitation period does not start to run until certain facts are known or could be known to the claimant