Case Analysis

Question 1

What is liability?

Answer 1

Liability is the cause(s) of action made up of legal elements which must be proven for the claim to succeed

Question 2

How can liability be established?

Answer 2

Liability can be established through identifying evidence which supports the case. It is also important to recognise the strength of the evidence and whether any evidence is adverse

Question 3

What is limitation?

Answer 3

Limitation is a period of time which you are able to bring a claim in. Once this period of time has elapsed, the claim becomes statute-barred if proceedings have not yet commenced.

Question 4

What is the basic limitation period for contract or tort cases?

Answer 4

Six years from the date when the cause of action accrued.

Question 5

When does the cause of action accrue (meaning the limitation period has begun) in contract cases?

Answer 5

The cause of action will accrue, and limitation start running, when the breach of contract occurs.

Question 6

In regards to limitation, how can you determine when the cause of action has accrued in contract cases?

Answer 6

If it is not clear where the breach of contract occurs, then you should refer to case law for clarity.

Question 7

In breach of contract cases, is the limitation period always six years?

Answer 7

No. You must check the contract to determine whether there is a contractual limitation period specified.

Question 8

In breach of contract cases, does a contractual limitation period within the contract or the six year limitation period take precedent?

Answer 8

The contractual limitation period will take precedent. If there is no limitation period stated, then the basic six year limitation period will apply.

Question 9

What is the most common remedy sought if liability is established against the defendant?

Answer 9

Damages

Question 10

How will you know which remedy you are seeking?

Answer 10

At the initial interview, you will have posed potential outcomes to the client, and agreed on the client’s objective here.

Question 11

When does a claim for damages arise in a contract case?

Answer 11

The claim for damages arises when one party to the contract has failed to perform an obligation under the contract

Question 12

What is the purpose of damages in a contract case?

Answer 12

The purpose of seeking damages in a contract case is to place the injured party in the position he would have been if the contract had been performed properly.

Question 13

What is the test for the recovery of damages for breach of contract?

Answer 13

The damages must not be too remote from the breach.

Question 14

How would you determine whether the damages for breach of contract are not too remote from the breach?

Answer 14

Identify if either the loss flows naturally from the breach, or whether the loss is within the reasonable contemplation of the parties at the time of the contract being made as being the probable result of the breach. If either are satisfied, then the test for recovery of damages in breach of contract cases is met.

Question 15

Can potential damages in a breach of contract or tort claim be reduced?

Answer 15

Yes, the potential damages in a breach of contract claim can be reduced if it can be shown that the claimant has failed to mitigate his loss. This is known as duty to mitigate.

Question 16

In regards to breach of contract cases, how can a claimant mitigate his losses?

Answer 16

Duty to mitigate means considering what the claimant has done, or has had the means of doing, and ought in reason to have done, whereby his loss has been, or would have been, diminished.

Question 17

When does duty to mitigate arise in respect of reducing damages?

Answer 17

Only at the point of the breach of contract or commission of the tort.

Question 18

How can a defendant allege that the claimant has failed to mitigate his losses?

Answer 18

This should be raised by the defendant in the pre-action correspondence and stated in his defence. The burden of proof will be on the defendant at trial.

Question 19

What is a debt action?

Answer 19

A debt action is a particular type of contract claim.

Question 20

In a debt action, which remedy is sought?

Answer 20

Here, the claimant will claim which the defendant promised to pay under the contract

Question 21

How can you tell the difference between a breach of contract action, and a debt action?

Answer 21

For example, if the buy wrongfully rejects the goods, then the seller has a claim for breach of contract. Alternatively, where the buyer takes delivery but fails to pay, then the action is for debt.

Question 22

Does the claimant have a duty to mitigate his loss in debt claims?

Answer 22

No, duty to mitigate only arises in breach of contract and tort cases

Question 23

What is quantum?

Answer 23

Quantum refers to the amount of damages the client is claiming.

Question 24

How can you prove quantum?

Answer 24

Evidence is required to prove each item. You should consider available figures or estimates, issues of remoteness or mitigation of loss, tests or expert examination of evidence and preservation of evidence.

Question 25

After considering liability, limitation, damages and quantum, what is the next issue to look into?

Answer 25

The overall viability of the claim needs to be considered.

Question 26

Which issues of viability relate to the defendant?

Answer 26

You must identify who the prospective defendant is, whether there is more than one possible defendant, where the defendant is and whether the defendant is solvent.

Question 27

Which issues of viability relate to the assets?

Answer 27

You must identify where the assets are, and what the assets are worth.

Question 28

Which issues of viability relate to the judgement?

Answer 28

You must identify whether the defendant will be able to pay any judgement, and what your client can afford to pay.

Question 29

Which issues of viability relate to funding?

Answer 29

You must identify whether the client has any suitable before the event insurance, whether the case is suitable for a CFA or DBA, and/or any after the event cover, and whether the client qualifies for public funding or third party funding.

Question 30

Which issues of viability relate to the time and costs?

Answer 30

You must identify how much time and resource the client will have to commit to investigate/deal with the case, and whether any cost-benefit analysis suggests a quicker and cheaper solution to litigation.

Question 31

Why must we identify all potential defendant’s as early as possible?

Answer 31

All persons to be sued should be sued at the same time and in the same claim. You should consider if the potential defendant is an individual, a partnership or limited company.

Question 32

Why must we consider a defendant’s solvency?

Answer 32

There is no point in suing a defendant who is on the verge of bankruptcy or liquidation as enforcing any judgement would be impossible.

Question 33

How can we determine the solvency of defendant who is a company?

Answer 33

A company search can be carried out

Question 34

How can we determine the solvency of defendant who is an individual?

Answer 34

A bankruptcy search can be carried out. An inquiry agent could also be instructed but this could be expensive.

Question 35

Why must we consider a defendant’s whereabouts?

Answer 35

A defendant needs to be traceable and his whereabouts known in order to communicate the claim. An inquiry agent could also be instructed but this could be expensive.

Question 36

What should be considered in regard to remedy?

Answer 36

You should consider any alternative remedies available to the client such alternative dispute resolution

Question 37

What are the two elements of burden of proof in civil litigation?

Answer 37

The legal burden and the balance of probabilities

Question 38

What is the legal burden in civil litigation?

Answer 38

The legal burden lies with the party asserting a fact, and they must prove it unless it is admitted by the opponent

Question 39

Does a defendant have a legal burden in civil litigation?

Answer 39

The defendant does not have to prove his defence, however if they allege that the opponent has failed to mitigate their loss, or contributory negligence, then they will have to proof

Question 40

What is the balance of probabilities in civil litigation?

Answer 40

In civil cases, the claimant is required to prove a fact on the balance of probabilities meaning the judge must be persuaded that the claimant’s version of events in more likely to be true than defendant’s.