Dispute Resolution In Contract and Tort Flashcards
What are the 4 potential stages of a contract
1)offer and acceptance 2) acceptance 3) Termination of offers 4)certainty
What is privity of contract
As a general rule only parties to the contract have rights and liabilities under it
What is consideration
promise or an act given in return, must not be past, need not be adequate, must be sufficient
What is duress
Improper or illegitimate threats
What are the effects of duress
Rescission
What are the express terms
Intention, incorporation of terms, classification of terms
What is intention
Importance, Reliance, Relative knowledge
What is incorporation of terms
Signature, Reasonable notice, Previous consistent course of dealing
What is classification of terms
Conditions, Warranties, Innominate or intermediate
What are the types of implied terms
By custom, implied in fact, implied in law, implied in statute
Name the tests applied when implying a term in fact
Business Efficacy. Officious bystander test
Which test will the courts apply when classifying the terms of a contract?
How parties’ intention would best be fulfilled
What is the remedy for breach of an innominate term?
Always damages but termination will depend on the nature of breach.
What is an exemption clause?
A clause which seeks to exclude or limit a party’s liability.
What are the exceptions to the rule that a term is incorporated into a contract by signature?
Misrepresentation. Non est factum
How are terms incorporated in to unsigned documents?
Reasonably sufficient notice
What rule was developed by the courts to defeat ‘unusual and unreasonable’ clauses?
The ‘red hand rule’
What is the contra proferentem rule?
The clause (any ambiguity…) will be construed against the person seeking to rely on it.
In the B2B context, to what extent can a person use an exemption clause to exclude his liability for negligence (other than for death or personal injury)?
Insofar as the clause satisfies the requirement of reasonableness.
Identify three factors relevant to the application of the ‘requirement of reasonableness’. Resources and availability of insurance (Limitation or exclusion)?
Bargaining strength. Inducements. Knowledge of the clause. Conditions placed on claims.
True or false? An unfair term is not binding on the consumer
True
What remedies are available for an innocent misrepresentation?
Recission. The court has discretion to award damages for innocent misrepresentation under s.2(2).
Give two factors relevant to whether a statement is a term, or potentially a misrepresentation.
Greater skill or knowledge of the subject matter. Importance.Reliance.
What types/categories of misrepresentation are recognised?
Fraudulent, Negligent (inc 2(1) of the Misrepresentation Act 1967). Innocent misrepresentation
List three bars to rescission.
Affirmation. Third party rights. Impossibility. Lapse of time.
Who may be able to claim undue influence?
A party who places trust and confidence in another person to the extent that they abrogate their own decision making.
What exactly is presumed in a case of presumed undue influence?
Two presumptions. One irrebuttable and one rebuttable.
What are the three types of mistake
common, cross- purpose and unilateral.
What statute governs ADR
Civil Procedure Rules 1998
What is mediation
Agreed instruction of a third party called a mediator
Facilitates discussions between disputing parties with the aim of reaching an agreed settlement
What is arbitration
The disputing parties agree to appoint an arbitrator or panel of arbitrators
The decision made by the arbitrator(s) is binding on the parties
The parties cannot seek a judgement from the court
What is an adverse costs order
Depriving a party of being awarded their costs even if successful
Ordering the party to pay some or all of the losing side’s costs as well as their own, even if successful
Ordering a higher rate of interest to be paid on damages awarded by the court
Depriving a party of interest on damages awarded by the court
What is litigation
Parties present their case to the judge through documents and oral evidence and representations
Once proceedings are issued and defended, withdrawing from proceedings without an agreement is likely to result in the withdrawing party being ordered to pay the other side’s costs
What is CPR 1998
89 rules governing how a civil court claim is to be conducted
How to know if a claim can be brought
Limitation
Costs/ funding
Defendant’s situation
Legal cause of action
Jurisdiction and governing law
How to know whether a claim should be brought
Is the case weak?
Is evidence lacking?
Is there a reasonable prospect of success?
What is a limitation period
Period of time after a breach to be able to bring the claim
What is the limitation period for Tort
6 years from date the damage caused (excluding personal injury)
What is the limitation period for contract
6 years from breach
What is the limitation period for Tort personal injury
3 years from date of cause of action or date of person injured
What is the limitation period for Tort latent damage
6 years from date of damage caused, 3 years from date of knowledge (15 years max from act/omission)
When can a limitation period be extended
Lack capacity- mentally or be a minor or death
What act govern Limitation periods
Limitation Act 1980
What must be done before proceedings can begin
- Letter of claim:
Basis of claim
Summary of facts
What C wants from D
Amount wanted and how calculated - Response:
Within a reasonable time (14 days – 3 months)
Whether claim accepted or not
If not, reasons why
Which facts/ parts of claim are disputed - Whether making counter-claim
- Details of any counter-claim
- Disclosure of key documents
- Consider using joint expert if needed
- Consider ADR
- Stocktake:
Review positions
Consider if proceedings can be avoided
Seek to narrow issues in dispute before proceedings issued.
When are cases seen at the County Court
£100,000 or less (£50,000 PI) must be County Court
When are claims seen at the High Court
over £100,000 (over £50,000 for PI) either County Court or High Court
What is not included when calculating the value of a claim
Interest, costs, that the court may make a finding of contributory negligence;
the defendant may make a counterclaim or that the defence may include a set-off
Where to start proceedings in the County Court
Money Claim Online (MCOL)
County Court Money Claims Centre (CCMCC)
County Court hearing centre
Where to start proceedings in the High Court
The King’s Bench Division
The Chancery Division
What are the claim documents
Claim form, particulars of the claim, supporting documents
How to personally serve a Claim Form
Handing to the individual/partnership/company
How to serve a Claim Form via post
1st Class post only/DX
What alternative methods of serving a Claim Form are there
Email/fax/text/voicemail/leaving with someone else (These MUST be pre approved by the court)
What address is a claim form sent to
Last known/usual address or Principal address of a Company/partnership or solicitors
What are the time limits of a Claim Form being served
4 straight months of issue date
What are the time limits of Particulars of the claim being served
Up to 14 days after Claim form
When is permission from the court needed to serve a claim form outside of the UK
if it was made after 1st January 2021 or no contractual agreement within the UK jurisdiction
When can you add/remove or substitute a party without permission
if the claim form has not yet been served
What is “whole claim admitted”
Defendant to admit entire claim and complete the admission form offering to pay the claim in full
What is “part claim admitted”
Defendant fills in admission form admitting to part of the claim and often offering the claimant an offer to settle
acknowledgment of service is optional true or false
True
How many days to you get to file a defence once the form has been served
28 days
How long is an agreed extension to file a defence
56 days
What are the other options for the defendant after being served
State in Acknowledgement of Service
14 days to make application to court to challenge
Supporting evidence needed
Granted - claim set aside
Refused - D file further Acknowledgement of Service within 14 days
What is a summary judgement
Where claim has no real prospect of success at trial; AND
There is no other compelling reason for a trial
What can the claimant do if the defendant doesn’t respond
Apply for judgment in default If the defendant fails to respond
When can the claimant apply for summary judgement
Where defence has no real prospect of success at trial; AND
There is no other compelling reason for a trial
When can the claimant discontinue proceedings
Court action too lengthy and expensive
Defendant unable to pay
Re-evaluated strength of case
Cost implications for claimant
How does the claimant apply for a settlement
Parties reach agreement before trial
Consent/ Tomlin Orders
What makes up the statements of case
Claim form
Particulars of claim
Defence
Part 20 claim
Requests for further information & responses
When can you rescind a contract
Contracts are rescinded when the parties thought they had a deal, but the basis was wrong, or didn’t exist. Rescission for misrepresentation applies in cases where a party relied on a statement by the other party to enter the contract, and the statement was not true.
When can you void a contract
A voidable contract is one that a party is entitled to rescind, or to have set aside by the court, by reason of some external act or event that precedes the contract and constitutes an improper inducement to enter into it (eg misrepresentation, undue influence or duress).
What is consideration
Bargain element
It’s not enforceable without consideration
Consideration does not need to reflect economic value
Promissory estoppel- high trees
What is contractual variation
Economic duress
Promises to pay more/ offers to pay less- perform your original duty
exceeding contractual duty is consideration
Practical benefit- sufficient consideration
Pinnels case- promises to accept less- promissory estoppel
What is duress
Improper or illegitimate threats
Pressure- illegitimate depending on context
Effects: rescission, brings you back to before the breach
List the 3 key elements required for a valid contract?
Agreement. Consideration. Intention to create legal relations
Within what time frame do you respond to a case with a defence
28 days of service of particulars (optional)
Where do you file a defence form
In response pack served on claimant
How many days do you have to dispute the court’s jurisdiction
14 days to make application to the courts
What is a summary judgement
Claim has no real prospect of success AND other compelling reason for a trial
What can the claimant do if the defendant doesn’t respond
Apply for judgement in default
Why would you discontinue proceedings
Court action too lengthy and expensive
Defendant unable to pay
Re-evaluated strength of case
Cost implications for claimant
What orders can be made to reach agreement before trial
Consent/ Tomlin Orders
What makes up the statements of case
Claim form
Particulars of claim
Defence
Part 20 claim
Requests for further information & responses
What are the purposes of the statements of case
Central to litigation process
Narrow down/ define the issues that are in dispute
Limit the matters that the P’s must prove
Ensures each P knows opponents’ case at early stage
What is in a claim form
Parties names, status & address (accurately)
Brief details of claim (concise statement of the nature of the claim and remedy sought)
Statement of value (specified - calculated figure/ unspecified - value bracket)
Financial summary of the claim
Particulars of claim (unless separate)
Statement of truth
What are the tort particulars of claim
Parties & status
Factual chronology
Duty of care
Breach of duty
Causation
Damages claimed (calculations/ value bracket)
Interest claimed (court won’t award unless claimed)
Statement of truth
What are the contract particulars of claim
Parties & status
Factual chronology
Existence of contract
Contractual terms
Breach alleged and particularised
Consequences of breach
Damages and loss alleged and particularised
Interest claimed (court won’t award unless claimed)
Statement of truth
What is a part 20 claim
Additional claim brought by the defendant
Part 20 CPR
Included with defence (follows)
What is a counterclaim
D brings own claim against claimant
New cause of action
Part of same proceedings
Burden of proof on D
Counterclaim or not?
D has a good excuse for not paying the monies owed in the original claim, but suffered no loss themselves.
D also suffered suffered loss attributable to C related to the original claim.
D suffered suffered loss attributable to C unrelated to original claim.
D strongly denies the claim.
What happens if the D wants to dispute the counterclaim
File defence within 14 days
Extension up to 28 days on agreement
What is an indemnity claim
Contractual or statutory duty to indemnify D (e.g. manufacturer of defective goods)
What is a contribution claim
Other P jointly responsible for loss/ harm (e.g. another driver in RTA)
What is the purpose of a interim application
Compliance with overriding principle
Deal with cases justly and at proportionate cost
Speed and efficiency of proceedings
Compliance with procedure
Assist in preparation for trial
What are examples of without notice applications
Freezing injunction
Search order
Serving outside the jurisdiction
