Building a claim Flashcards
What are the key ingredients in a case analysis?
Parties → Facts → Cause(s) of action → Evidence → Jurisdiction / governing law → Limitation → Remedies → Enforcement → Prospects of Success
What is a cause of action?
A cause that gives rise to a legal claim.
This includes:
- 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
What are the main elements in a breach of contract claim?
Breach of contract - analysis
- Contract formulation: There must be a contractual relationship between the parties. N.B: this can be a written or oral contract. Are all the elements in a contract present? (Offer, Acceptance, Consideration, Intention to create legal relations)
- Terms: What are the terms of the contract? Consider express terms and any implied terms by law.
- 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.
- Defences: Are there clauses in the contract that attempt to limit or exclude liability. How are they enforceable?
- Remedies: What are the remedies for the breach of contract?
What are the main elements in a negligence claim?
Negligence - analysis
Negligence: Tort - breach of a legal duty of care which results in damage to the injured party.
- 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.
- Breach: Was there a breach of that duty by D?
- Damage/loss: Was there any damage/loss incurred by C?
- 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.
- Remoteness: Was the damage caused reasonably foreseeable? If so it should be recoverable.
- Defences: Contractual limitations or exclusions on liability, failure to mitigate loss, contributory negligence
- Remedies: What are the remedies for the negligence?
How does a disputes solicitor analyse factual evidence?
Factual evidence analysis:
- 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 further evidence does the client need to provide to establish/prove their case.
- What further evidence may arise that could weaken your client’s case.
Why must we be aware of a claim’s limitation period?
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.
Limitation Act 1980: Sets out the relevant limitation periods for various types of claim.
What is the limitation period for:
Breach of Contract (verbal contract or written agreement signed by just the parties)
6 years
What is the limitation period for:
Breach of Contract (deed)
12 years
What is the limitation period for:
Action pursuant to Misrepresentation Act 1967 s2(1) - Tort
6 years
What is the limitation period for:
Personal injury caused by negligence - Tort
3 years
What is the limitation period for:
Latent damage caused by negligence - Tort
6 years
If damage is found later…
3 years from the date of knowledge, with a 15-year long stop from the date of the negligent act/omission
What is the limitation period for:
Defamation of malicious falsehood - Tort
1 year
What is the limitation period for:
Claims against a trustee in respect of fraud or fraudulent breach of trust
Unlimited
What is the limitation period for:
Claims against a trustee to recover trust property or the proceeds of trust property from the trustee
Unlimited
What is the limitation period for:
Other breach of trust claims
6 years
What is the limitation period for:
What is the limitation period for:
Claims in respect of defective products under the CPA 1987 - Tort
3 years
If later…
3 years from the date of knowledge of certain material facts, with a long stop of 10 years from the date the defendant put the product into circulation
What is the limitation period for:
Claims against public authorities under s.6 of HRA 1998
1 year - can be extended by the court
What is the limitation period for:
Judicial Review actions
CPR apply a time limit of 3 months (CPR r54.5)
What will happen if a cause of action is based on fraud, deliberate concealment or mistake?
The limitation period does not start to run until certain facts are known or could be known to the claimant
