Disputes - Pre-Action Considerations (2) Flashcards
What are pre-action considerations?
Pre-Action Considerations: Prior to issuing proceedings, claimants should consider the feasibility and legality of their claim.
What are the different types of claim?
Type of Claim: The Claimant should identify the type of claim, as this affects documents and court procedure.
(1) Specified Claim: A claim for a specified fixed sum, i.e. a debt.
(2) Unsecured Claim: A claim for an unspecified sum, i.e. damages.
Mixed Claim: A claim involving both elements is treated as an unspecified claim.
Who are the parties of a civil dispute?
Parties: Claimants should identify all potential defendants, and the viability of a claim against them.
(1) Defendants: The existence and whereabouts of defendants should be determined. Inquiry agents may be instructed to track them down (at cost).
(2) Viability: Enquiries should be made into the financial resources of potential defendants. It is not worth suing a party who cannot pay (unless indemnified or insured).
(3) Spelling and Legal Capacity: The spelling of names and legal capacity of parties must be accurately recorded. Mistakes can be costly.
Statutory Safeguards
Statutory Safeguards: Claimants may require statutory safeguards if they are children or mentally incapable (MCA 2005).
(1) Litigation Friend: An individual should be selected to competently and fairly conduct proceedings on behalf of the Claimant, known as a ‘Litigation Friend’.
(2) Settlements: The court must approve out-of-court settlements in respect of any incapable parties.
How is the case analysed?
Case Analysis: Claimants should determine whether they have a legal basis of claim, and whether they can prove that legal basis with evidence on a balance of probabilities, and therein their prospects of success.
(1) Contractual Claim: Must be established that Defendant breached a contract entered into with the Claimant and caused them recoverable loss (unless they can sue as a third-party to the contract).
>Contractual claims should be made in preference to any corresponding tortious claim where relevant.
(2) Negligence: Must be established that Defendant owed the Claimant a duty of care, breached it, and caused them recoverable loss.
(3) Nuisance: Must be established that the Defendant, a landowner, unreasonably interfered with the Claimant’s use or enjoyment of their own land.
(4) Misrepresentation: Must be established that the Defendant made an untrue or misleading statement of fact, inducing the Claimant into a contract, and in doing so caused them recoverable loss (tortious basis).
What is a limitation period?
Limitation Period: Claims must be issued inside the ‘limitation period’, a period of time in which claims can be issued as determined by the Limitation Act 1980. This will differ by type of claim.
(1) Purpose: Limitation periods prevent individuals from being exposed to liability for a cause of action for life, and also help to ensure that evidence is relatively fresh and accessible when claims are issued.
(2) Late Claims: Claims can technically be issued beyond the limitation period, but are ‘statute barred’. This means that the Defendant has a complete defence to the claim, which should be made in the defence form.
(3) Extension: In very rare circumstances, the court will permit a late claim in the interests of justice.
>A limitation period was deemed inequitable in respect of a tortious claim against a rapist 25 years after the rape, as he had won the lottery and it was deemed unjust to deny the claim (A v Hoare).
(4) Stayed Proceedings: Parties will often issue a claim when the limitation period is about to expire, and then apply to have it ‘stayed’. The claim is active but paused, to avoid limitation expiring whilst engaging in ADR.
Contract
Contract: The limitation period for contractual claims will differ.
(1) Default Rule: By default, the limitation period expires 6 years from the cause of action (s5).
>Cause of action is the delivery of the good or the completion of the service - not the discovery of the fault.
(2) Contract Clause: Alternatively, the contract itself may determine the limitation period. This may extend or reduce the default position, and overrides the default position (subject to UCTA/CRA).
>This may also respecify the ‘cause of action’, i.e. ‘from date of discovery’ rather than date of completion.
Tort
Tort: The limitation period for tortious claims will differ.
(1) Default Rule: By default, the limitation period expires 6 years from the cause of action (s2).
>Cause of action is the date of the breach of duty.
(2) Personal Injury: For personal injuries, the limitation period expires 3 years from the cause of action.
>This is 3 years from an 18th birthday if the injury was sustained to a child.
>If the Claimant was rendered disabled or incapable as a result, it is 3 years from the date of recovery or death.
(3) Latent Damage: If the damage or tortfeasor is hidden on the date of cause of action, the limitation period runs either from the default position, or 3 years from the discovery of damage or tortfeasor, whichever ends latest (s14A).
>This is capped at a maximum of 15 years from the cause of action.
How is jurisdiction established?
Jurisdiction: It must be determined that the Law of England Wales law has jurisdiction over the claim, particularly for claims involving international components.
(1) European Union: EU Law does not apply to transactions with European Union members. Countries will apply domestic law to dealings with the United Kingdom.
(2) Governing Law Clause: Contracts may contain binding clauses on jurisdiction, subject to reasonableness. All Hague Convention members are bound to these clauses, meaning the specified jurisdiction must be used.
(3) No Law Clause: Where no governing law clause exists, substantial litigation will often be required simply to determine jurisdiction for the substantial issue. This is prohibitively expensive.
Establishing Jurisdiction by Service
Establishing Jurisdiction by Service: Jurisdiction must be figuratively ‘imposed’ upon a foreign Defendant in order to bind them to the proceedings. There are two methods.
(1) Domestic Service: Jurisdiction is established if the claim form can be physically served on the Defendant in England or Wales, irrespective of how long they are present. Permission of court is not required.
>They can dispute applicability of jurisdiction after-the-fact.
(2) Non-Domestic Service: Jurisdiction is established if the claim form can be physically served on the Defendant anywhere else in the world, but court permission is required.
Contract Claim: Permission granted if contract was made or breached in England and Wales, stipulates English and Welsh law, or contains a relevant governing law clause.
Tortious Claim: Permission granted if tort occurred or loss was sustained in England and Wales.
