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Year 3 Law > Dispute Resolution In Contract and Tort > Flashcards

Dispute Resolution In Contract and Tort Flashcards

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1
Q

What are the 4 potential stages of a contract

A

1)offer and acceptance 2) acceptance 3) Termination of offers 4)certainty

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2
Q

What is privity of contract

A

As a general rule only parties to the contract have rights and liabilities under it

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3
Q

What is consideration

A

promise or an act given in return, must not be past, need not be adequate, must be sufficient

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4
Q

What is duress

A

Improper or illegitimate threats

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5
Q

What are the effects of duress

A

Rescission

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6
Q

What are the express terms

A

Intention, incorporation of terms, classification of terms

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7
Q

What is intention

A

Importance, Reliance, Relative knowledge

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8
Q

What is incorporation of terms

A

Signature, Reasonable notice, Previous consistent course of dealing

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9
Q

What is classification of terms

A

Conditions, Warranties, Innominate or intermediate

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10
Q

What are the types of implied terms

A

By custom, implied in fact, implied in law, implied in statute

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11
Q

Name the tests applied when implying a term in fact

A

Business Efficacy. Officious bystander test

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12
Q

Which test will the courts apply when classifying the terms of a contract?

A

How parties’ intention would best be fulfilled

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13
Q

What is the remedy for breach of an innominate term?

A

Always damages but termination will depend on the nature of breach.

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14
Q

What is an exemption clause?

A

A clause which seeks to exclude or limit a party’s liability.

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15
Q

What are the exceptions to the rule that a term is incorporated into a contract by signature?

A

Misrepresentation. Non est factum

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16
Q

How are terms incorporated in to unsigned documents?

A

Reasonably sufficient notice

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17
Q

What rule was developed by the courts to defeat ‘unusual and unreasonable’ clauses?

A

The ‘red hand rule’

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18
Q

What is the contra proferentem rule?

A

The clause (any ambiguity…) will be construed against the person seeking to rely on it.

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19
Q

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)?

A

Insofar as the clause satisfies the requirement of reasonableness.

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20
Q

Identify three factors relevant to the application of the ‘requirement of reasonableness’. Resources and availability of insurance (Limitation or exclusion)?

A

Bargaining strength. Inducements. Knowledge of the clause. Conditions placed on claims.

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21
Q

True or false? An unfair term is not binding on the consumer

A

True

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22
Q

What remedies are available for an innocent misrepresentation?

A

Recission. The court has discretion to award damages for innocent misrepresentation under s.2(2).

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23
Q

Give two factors relevant to whether a statement is a term, or potentially a misrepresentation.

A

Greater skill or knowledge of the subject matter. Importance.Reliance.

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24
Q

What types/categories of misrepresentation are recognised?

A

Fraudulent, Negligent (inc 2(1) of the Misrepresentation Act 1967). Innocent misrepresentation

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25
Q

List three bars to rescission.

A

Affirmation. Third party rights. Impossibility. Lapse of time.

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26
Q

Who may be able to claim undue influence?

A

A party who places trust and confidence in another person to the extent that they abrogate their own decision making.

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27
Q

What exactly is presumed in a case of presumed undue influence?

A

Two presumptions. One irrebuttable and one rebuttable.

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28
Q

What are the three types of mistake

A

common, cross- purpose and unilateral.

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29
Q

What statute governs ADR

A

Civil Procedure Rules 1998

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30
Q

What is mediation

A

Agreed instruction of a third party called a mediator
Facilitates discussions between disputing parties with the aim of reaching an agreed settlement

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31
Q

What is arbitration

A

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

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32
Q

What is an adverse costs order

A

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

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33
Q

What is litigation

A

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

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34
Q

What is CPR 1998

A

89 rules governing how a civil court claim is to be conducted

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35
Q

How to know if a claim can be brought

A

Limitation
Costs/ funding
Defendant’s situation
Legal cause of action
Jurisdiction and governing law

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36
Q

How to know whether a claim should be brought

A

Is the case weak?
Is evidence lacking?
Is there a reasonable prospect of success?

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37
Q

What is a limitation period

A

Period of time after a breach to be able to bring the claim

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38
Q

What is the limitation period for Tort

A

6 years from date the damage caused (excluding personal injury)

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39
Q

What is the limitation period for contract

A

6 years from breach

40
Q

What is the limitation period for Tort personal injury

A

3 years from date of cause of action or date of person injured

41
Q

What is the limitation period for Tort latent damage

A

6 years from date of damage caused, 3 years from date of knowledge (15 years max from act/omission)

42
Q

When can a limitation period be extended

A

Lack capacity- mentally or be a minor or death

43
Q

What act govern Limitation periods

A

Limitation Act 1980

44
Q

What must be done before proceedings can begin

A
  1. Letter of claim:
    Basis of claim
    Summary of facts
    What C wants from D
    Amount wanted and how calculated
  2. 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
  3. Whether making counter-claim
  4. Details of any counter-claim
  5. Disclosure of key documents
  6. Consider using joint expert if needed
  7. Consider ADR
  8. Stocktake:
    Review positions
    Consider if proceedings can be avoided
    Seek to narrow issues in dispute before proceedings issued.
45
Q

When are cases seen at the County Court

A

£100,000 or less (£50,000 PI) must be County Court

46
Q

When are claims seen at the High Court

A

over £100,000 (over £50,000 for PI) either County Court or High Court

47
Q

What is not included when calculating the value of a claim

A

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

48
Q

Where to start proceedings in the County Court

A

Money Claim Online (MCOL)
County Court Money Claims Centre (CCMCC)
County Court hearing centre

49
Q

Where to start proceedings in the High Court

A

The King’s Bench Division
The Chancery Division

50
Q

What are the claim documents

A

Claim form, particulars of the claim, supporting documents

51
Q

How to personally serve a Claim Form

A

Handing to the individual/partnership/company

52
Q

How to serve a Claim Form via post

A

1st Class post only/DX

53
Q

What alternative methods of serving a Claim Form are there

A

Email/fax/text/voicemail/leaving with someone else (These MUST be pre approved by the court)

54
Q

What address is a claim form sent to

A

Last known/usual address or Principal address of a Company/partnership or solicitors

55
Q

What are the time limits of a Claim Form being served

A

4 straight months of issue date

56
Q

What are the time limits of Particulars of the claim being served

A

Up to 14 days after Claim form

57
Q

When is permission from the court needed to serve a claim form outside of the UK

A

if it was made after 1st January 2021 or no contractual agreement within the UK jurisdiction

58
Q

When can you add/remove or substitute a party without permission

A

if the claim form has not yet been served

59
Q

What is “whole claim admitted”

A

Defendant to admit entire claim and complete the admission form offering to pay the claim in full

60
Q

What is “part claim admitted”

A

Defendant fills in admission form admitting to part of the claim and often offering the claimant an offer to settle

61
Q

acknowledgment of service is optional true or false

A

True

62
Q

How many days to you get to file a defence once the form has been served

A

28 days

63
Q

How long is an agreed extension to file a defence

A

56 days

64
Q

What are the other options for the defendant after being served

A

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

65
Q

What is a summary judgement

A

Where claim has no real prospect of success at trial; AND
There is no other compelling reason for a trial

66
Q

What can the claimant do if the defendant doesn’t respond

A

Apply for judgment in default If the defendant fails to respond

67
Q

When can the claimant apply for summary judgement

A

Where defence has no real prospect of success at trial; AND
There is no other compelling reason for a trial

68
Q

When can the claimant discontinue proceedings

A

Court action too lengthy and expensive
Defendant unable to pay
Re-evaluated strength of case
Cost implications for claimant

69
Q

How does the claimant apply for a settlement

A

Parties reach agreement before trial
Consent/ Tomlin Orders

70
Q

What makes up the statements of case

A

Claim form
Particulars of claim
Defence
Part 20 claim
Requests for further information & responses

71
Q

When can you rescind a contract

A

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.

72
Q

When can you void a contract

A

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).

73
Q

What is consideration

A

Bargain element
It’s not enforceable without consideration
Consideration does not need to reflect economic value
Promissory estoppel- high trees

74
Q

What is contractual variation

A

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

75
Q

What is duress

A

Improper or illegitimate threats
Pressure- illegitimate depending on context
Effects: rescission, brings you back to before the breach

76
Q

List the 3 key elements required for a valid contract?

A

Agreement. Consideration. Intention to create legal relations

77
Q

Within what time frame do you respond to a case with a defence

A

28 days of service of particulars (optional)

78
Q

Where do you file a defence form

A

In response pack served on claimant

79
Q

How many days do you have to dispute the court’s jurisdiction

A

14 days to make application to the courts

80
Q

What is a summary judgement

A

Claim has no real prospect of success AND other compelling reason for a trial

81
Q

What can the claimant do if the defendant doesn’t respond

A

Apply for judgement in default

82
Q

Why would you discontinue proceedings

A

Court action too lengthy and expensive
Defendant unable to pay
Re-evaluated strength of case
Cost implications for claimant

83
Q

What orders can be made to reach agreement before trial

A

Consent/ Tomlin Orders

84
Q

What makes up the statements of case

A

Claim form
Particulars of claim
Defence
Part 20 claim
Requests for further information & responses

85
Q

What are the purposes of the statements of case

A

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

86
Q

What is in a claim form

A

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

87
Q

What are the tort particulars of claim

A

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

88
Q

What are the contract particulars of claim

A

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

89
Q

What is a part 20 claim

A

Additional claim brought by the defendant
Part 20 CPR
Included with defence (follows)

90
Q

What is a counterclaim

A

D brings own claim against claimant
New cause of action
Part of same proceedings
Burden of proof on D

91
Q

Counterclaim or not?

A

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.

92
Q

What happens if the D wants to dispute the counterclaim

A

File defence within 14 days
Extension up to 28 days on agreement

93
Q

What is an indemnity claim

A

Contractual or statutory duty to indemnify D (e.g. manufacturer of defective goods)

94
Q

What is a contribution claim

A

Other P jointly responsible for loss/ harm (e.g. another driver in RTA)

95
Q

What is the purpose of a interim application

A

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

96
Q

What are examples of without notice applications

A

Freezing injunction
Search order
Serving outside the jurisdiction

Year 3 Law (5 decks)

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