B. Parties, Causes of Action, Limitation, Foreign Element

Question 1

Who is C & D?

Answer 1

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

Question 2

3 types of claims

Answer 2

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

Question 3

What is the legal basis of claim?

Answer 3

The law C is suing under = reason

E.g. breach of contract, tort of negligence or mix = reason

Question 4

Main examples of legal basis

Answer 4

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.

Question 5

What should sol do? = case analysis

Answer 5

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

Question 6

Facts to look out for if there is a breach of contract

Answer 6

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)

Question 7

Evidence to look out for if there is a breach of contract

Answer 7

Contract itself

Witnesses

Correspondence between parties

Invoices/orders not fulfilled by client

Accounts/company financial statements

Question 8

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?

Answer 8

1. Six years
2. Three years
3. One year
4. Three months
5. Six years
6. Dwellings completed after 28 June 2022 = 15 years

Dwellings completed before 28 June 2022 = 30 years

Question 9

What must be received by the court before the limitation period expires?

Answer 9

CF (issue of CF will usually happen same day)

Question 10

Give me an example of limitation period for PI.

Answer 10

3 years either from date of injury (broken leg) or from the date when C finds out they are injured.

Question 11

Rule for limitation period for latent damage.

Answer 11

6 years = date of damage/negligence occurred

3 years = found out much later

No more than 15 years from negliegent act/damage

Question 12

What else do you have in regards to limitation period for defective building where building uninhabitable?

Answer 12

Right of action against any person who takes on refurbishment/ remedial works after 28 June 2022: 15 years LP applies

Question 13

In a tort action, the date of knowledge does not occur until the claimant has knowledge of what four things?

Answer 13

1. That the injury is significant
2. That it is attributable in whole or part to the act or omission alleged
3. Knowledge of the defendant
4. Identity of any other actors if it is they who did the conduct, not D (e.g. hospital/doctor situation)

Question 14

In addition to knowing they have an injury, what must a claimant know?

Answer 14

Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant

Question 15

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?

Answer 15

Three years from:
1. Date of death, or
2. Date of knowledge of the deceased’s personal representative

Question 16

What is the rule when deciding whether a contract claim should be tried in England or another country?

Answer 16

1. check what contract states i.e. jurisdiction clause
2. 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.

Question 17

What is the rule when deciding whether a tort claim should be tried in England or another country?

Answer 17

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.

Question 18

Procedure if you want your case to be tried in England and Wales but D outside EU

Answer 18

serve CF on that indiv/comp to get them to defend in English Court.

Question 19

What do you need if you serve CF outside England and Wales?

Answer 19

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

Question 20

Difference between applicable law and jurisdiction

Answer 20

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

Question 21

Court allows service out of jurisdiction if:

Answer 21

1. in application C states that they have reasonable prospect of success.
2. court satisfied England and Wales is correct forum for claim
3. one of the specific grounds exist for respective claim

Question 22

What are the grounds for breach of contract claim?

Answer 22

• 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

Question 23

What are the grounds for tort claim?

Answer 23

• damage/loss committed in England and Wales or
• claim governed by English and Welsh law

Question 24

If granted permission, how do you actually serve abroad?

Answer 24

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.