B. Parties, Causes of Action, Limitation, Foreign Element Flashcards
Who is C & D?
C= starts case & brought dispute to court
D= being sued. Can be indiv, comp or LLP. Check if D has funds and worth suing i.e. searches via Companies House, bankrupcy search, inquiry agent
3 types of claims
specified = for fixed sum, usually debt. Easily calculated by C.
unspecified = amount of damages C claiming is uncertain. Court figures it out. Usually loss of profits.
mixed = If C has specified sum and unspecified damages = unspecified sum
What is the legal basis of claim?
The law C is suing under = reason
E.g. breach of contract, tort of negligence or mix = reason
Main examples of legal basis
Breach of contract i.e. terms = damages sought to put C back in position if not breached.
Tort of negligence i.e. duty owed to C = damages sought to put C back in position if not been negligent.
What should sol do? = case analysis
Understand facts that make up basis for that cause of action.
E.g. breach of contract = determine if o/s breached contract by not delivering on time = central element of claim.
Gather evidence to prove incl. witnesses, expert reports = stronger case
Facts to look out for if there is a breach of contract
Whether there is in fact a contract (offer & acceptance)
Terms of contract
Breach of terms (repudiatory)
Consequences of breach (loss suffered)
Action taken by client (any mitigation)
Evidence to look out for if there is a breach of contract
Contract itself
Witnesses
Correspondence between parties
Invoices/orders not fulfilled by client
Accounts/company financial statements
What is the limitation period for:
(1) breach of contract and most claims in tort;
(2) personal injury and fatal accident claims;
(3) defamation claims;
(4) unfair dismissal claims
(5) latent damages (hidden/not obvious), not uninhabitable with no PI
(6) defective building works where building rendered uninhabitable?
- Six years
- Three years
- One year
- Three months
- Six years
- Dwellings completed after 28 June 2022 = 15 years
Dwellings completed before 28 June 2022 = 30 years
What must be received by the court before the limitation period expires?
CF (issue of CF will usually happen same day)
Give me an example of limitation period for PI.
3 years either from date of injury (broken leg) or from the date when C finds out they are injured.
Rule for limitation period for latent damage.
6 years = date of damage/negligence occurred
3 years = found out much later
No more than 15 years from negliegent act/damage
What else do you have in regards to limitation period for defective building where building uninhabitable?
Right of action against any person who takes on refurbishment/ remedial works after 28 June 2022: 15 years LP applies
In a tort action, the date of knowledge does not occur until the claimant has knowledge of what four things?
- That the injury is significant
- That it is attributable in whole or part to the act or omission alleged
- Knowledge of the defendant
- Identity of any other actors if it is they who did the conduct, not D (e.g. hospital/doctor situation)
In addition to knowing they have an injury, what must a claimant know?
Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant
In a tort action, what are the two options for the limitation period if the injured party dies within three years of the accrual date?
Three years from:
1. Date of death, or
2. Date of knowledge of the deceased’s personal representative
What is the rule when deciding whether a contract claim should be tried in England or another country?
- check what contract states i.e. jurisdiction clause
- if no such clause, general rule for disputes in EU is that it will be tried where seller in contract is situated.
UNLESS dispute over land/property then it’s the country the land is situated.
Where D is outside EU, check contract if there’s a choice of law. If not, court determine the choice of law before proceedings formally begin.
What is the rule when deciding whether a tort claim should be tried in England or another country?
Check contract
No clause, general rule for disputes in EU = where tortious damage occurred.
E.g. negligent act caused tower in France to fall = use French law.
D outside EU = court decide which law is applicable.
Procedure if you want your case to be tried in England and Wales but D outside EU
serve CF on that indiv/comp to get them to defend in English Court.
What do you need if you serve CF outside England and Wales?
Court permission (exceptions if D lives in Scotland/Northern Ireland).
BUT if suing under contract and it has jurisdiction clause favouring England and Wales you can sue without permission
Difference between applicable law and jurisdiction
Applicable law = law used to try the case
Jurisdiction = having case tried in English/Welsh courts
Can have claim using French Law that is being tried in English Court
Court allows service out of jurisdiction if:
- in application C states that they have reasonable prospect of success.
- court satisfied England and Wales is correct forum for claim
- one of the specific grounds exist for respective claim
What are the grounds for breach of contract claim?
- contract made in Englan dand Wales or
- offer received in England and Wales or
- contract made through agent living in England and Wales or
- governed by English and Welsh law or
- breach of contract committed in England and Wales
What are the grounds for tort claim?
- damage/loss committed in England and Wales or
- claim governed by English and Welsh law
If granted permission, how do you actually serve abroad?
According to law of country.
Hague Convention = central authority that can receive & transmit CF for service or use British consulate/judicial authorities in such states.
Otherwise appoint local lawyers as agents to effect service.
