Causes of Action and Remedies in Non-PI Claims

Question 1

When will the client be entitled to a remedy?

Answer 1

When they can establish a legal cause of action as loss on its own is not sufficient

Question 2

Legal components of an action

Answer 2

Liability, causation, quantum

Question 3

What’s needed for liability in breach of contract?

Answer 3

That there’s a contract (offer, acceptance, consideration and intention to create legal relations) and a term of the contract has been breached

Question 4

What’s needed for liability in negligence?

Answer 4

That the defendant owed a duty of care to the claimant ans subsequently breached it

Question 5

Where the parties are jointly liable-

Answer 5

Either party is liable up to the full amount

Question 6

Where the parties are severally liable-

Answer 6

The parties are only liable for their respective shares

Question 7

Joint and several liability

Answer 7

The claimant can choose who to pursue (joint) but one of the defendants may seek a contribution from the other parties owing the liability in the share of each of their liability

Question 8

Vicarious liability

Answer 8

Liability of an employer for actions of an employee provided that the employee did not act on a frolic of their own

Question 9

For joint debts, who should be sued?

Answer 9

All joint debtors

Question 10

Causation

Answer 10

The question of whether the act caused the damage

Question 11

Quantum

Answer 11

How much loss has been suffered

Question 12

The aim of any action (4)

Answer 12

Establish or seek to change a legal status; determine legal rights and duties; rectify an infringement or denial of legal rights; seek a declaration of the position between the parties with no further remedy

Question 13

Aim of damages in tort

Answer 13

To put the claimant in the position they would have been in had it not been for the tort

Question 14

Damages in tort must be-

Answer 14

A reasonably foreseeable consequence of the tort

Question 15

Aim of damages in contract

Answer 15

To put the claimant in the position they would have been in but for the breach

Question 16

How to assess the principle on damages in tort

Answer 16

Either to restore the claimant to the position they would have been in had the contract been correctly performed or to compensate the claimant for expenditure rendered futile by the breach

Question 17

In order to obtain damages in contract the claimant must be able to show that-

Answer 17

The losses suffered were in the reasonable contemplation of the parties at the time the contract was made as being the probable result of any breach

Question 18

In both contract and tort cases, the claimant has a duty to do what to their loss?

Answer 18

Mitigate

Question 19

Who is the burden of proof on to show that the claimant has not mitigated their losses?

Answer 19

Defendant

Question 20

Before proceedings are issued, a claimant will only be entitled to interest if?

Answer 20

There’s a specific contractual clause providing for it or if the Late Payment of Commercial Debts (Interest) Act 1998 applies at which the rate is 8% above base rate

Question 21

Between start and end of the proceedings, which statutes can be relied on to claim interest?

Answer 21

Senior Courts Act 1981 (if HC), County Courts Act 1984 (if CC) or the Late Payment of Commercial Debts (Interest) Act 1998

Question 22

Rule 16.4 CPR

Answer 22

The claimant must make clear in the PofC whether they seek interest on any amounts as well as state the basis

Question 23

When are nominal damages awarded?

Answer 23

Where there has been an infringement of a legal right but where there have been no losses arising out of the actual infringement

Question 24

Aggravated damages

Answer 24

Additional damages that the court may award as compensation for the defendant’s objectionable behaviour

Question 25

When is an aggravated damages award most often made?

Answer 25

When the defendant’s behaviour was designed to injure the claimant’s pride or dignity

Question 26

Exemplary damages

Answer 26

Damages which go beyond compensating for actual loss and are awarded to show the court’s disapproval of defendant’s behaviour

Question 27

When will an order for exemplary damages be made? (3)

Answer 27

Bad behaviour by government servants; where the defendant’s conduct was designed to make a profit in excess of the compensatory damages payable; where statute expressly provides

Question 28

Other remedies (7)

Answer 28

Delivery up of goods; injunctions; specific performance; rectification; accounts; declaration; restitution

Question 29

The claim for restitution is for-

Answer 29

Repayment of benefit received by the defendant, not losses suffered by the claimant