FLK1 DR Key Pre-Action Steps

Question 1

Explain S14 Sale of Goods Act 1979.

Answer 1

The product must be of satisfactory quality.

S14(2B): The product must be satisfactory in appearance, finish and durability.

Question 2

Explain S14(3) Sale of Goods Act 1979.

Answer 2

Product must eb fit for that specific purpose.

Question 3

What happens if the implied terms of the contract are broken?

Answer 3

The suffering party can:

1. Treat the contract as repudiated;
2. Reject the product +
3. Seek a full refund of the purchase price.

Question 4

When does the suffering party lose the right to reject, and give statutory evidence?

Answer 4

Under s11(4), if the party accepted the product, they lose the right to reject.

Question 5

When the party loses the right to reject, what will they only be able to claim?

Answer 5

They can only claim for breach fo warranty.

Question 6

How do you measure damages for breach of warranty?

Answer 6

Difference between the value of the product at time of delivery + value it would have been if D fulfilled the warranty.

Question 7

What is the Limitation Period (LP) for a simple contract action?

Answer 7

6 yrs from the date on which the cause of action accrued (s5 LA 1980).

Question 8

When would mediation be used?

Answer 8

When the dispute is relatively straightforward and it will be the most cost-effective way of resolving the dispute.

Question 9

By para 16 PD, what financial sanctions may the court impose, even if the C is successful in the proceedings?

Answer 9

1. Order that C pays all or part of D’s costs of proceedings.
2. Order that C pays those costs on an indemnity basis (pays more of D’s costs than they would normally pay)
3. Order depriving C of interest on amount recovered for specified period, and/or awarding interest at a lower rate than otherwise.

Question 10

True or false?

Breach of contract, negligence, misrep + nuisance are all examples of a cause of action.

Answer 10

True.

Question 11

What do solicitors mean when they are trying to establish the cause of action?

Answer 11

Referring to the set of facts that establish the client’s right to make a claim to recover money or property,

Or enforce a legal right against another party.

Question 12

True or false?

The solicitor is instructed to prep a contract for a business person.

The solicitor owes the client a concurrent duty of care in both contract + tort to prep the contract exercising reasonable care + skill.

Answer 12

True.

Question 13

For the purposes of civil DR, is there a difference between a partnership and a limited liability partnership?

Answer 13

Yes. They are different legal persons.

LLP: limited liability

Partnership: partners fully responsible.

Question 14

When does time under the relevant LP cease to run?

Answer 14

It ceases to run when the C commences legal proceedings in respect of the cause of action in Q.

General principle: bringing of an action stops the running of time for the purposes of that COA only.

Question 15

Why is it false to say that the LP for contract breach claims is always 6 yrs?

Answer 15

Because you need to check if a longer or shorter limitation period has been agreed between the parties - look at contract.

Question 16

When can the court impose a costs sanction on a party re ADR?

Answer 16

If that party unreasonably refuses to take part in an ADR process proposed by another party.

Burden is on other party to show that the refusal was unreasonable.

Question 17

Are the parties in arbitration bound by the arbitration decision?

Answer 17

Yes, the parties are bound by the award.

Question 18

What is the difference between remoteness and mitigation of loss?

Answer 18

Remoteness: What happened before or at the time a contract was made or a tortious duty arose.

Mitigation of loss: What happens after a contract or tortious duty has been breached.

Question 19

When is the cause of action in a contract breach claim?

Answer 19

When the statutory implied terms were broken - read the facts.

Question 20

How do you calculate the amount of damages that a C can claim?

Answer 20

How much they spent to get the product but how much they SHOULD have paid.

Eg: paid £20k but should have paid £10k =
20k - 20k = £10k damages.

Question 21

When would there be a variation of the usual LP? When there is a written contract or oral contract?

Answer 21

Written contract and what was agreed between the parties. They could have extended or shortened the LP.

Question 22

Example of determining the cause of action in a breach of contract claim?

Answer 22

The day which the product of the same quality as the sample should have been delivered.

Question 23

Fundamental legal principle re LP’s?

Answer 23

The date on which the cause of action accrues is disregarded and the LP begins the following day and expires on the corresponding date - same day + month 6 yrs later.

Question 24

Cause of action in negligence when the C is a child?

Answer 24

3 yr L-PI-P doesn’t run until they turn 18 and then the LP expires on their 21st bday.

Question 25

What method of ADR would you choose if both parties need a quick, final + binding resolution of the dispute?

Answer 25

Mediation.

Question 26

What happens if a claim is issued after the relevant LP has expired? (re PD protocols)

Answer 26

D will be entitled to use that as a defence to the claim.

If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.

Question 27

What is the difference between a governing law clause and a jurisdiction clause?

Answer 27

Governing law clause: enables parties to a contract to specify the system of law that will apply to the interpretation of their agreement + effect if dispute arises.

Jurisdiction clause: DR clause which identified which court(s) are to hear a dispute.

Question 28

Is a D in breach of DOC (duty of care) if a passenger in another vehicle got injured because they weren’t wearing a seatbelt?

Ie, whose fault is it? The D or the passenger who didn’t wear a seatbelt?

Answer 28

The D because there is a well-established + recognised DOC between road users.

Question 29

What is the standard of care for road users?

Answer 29

Reasonably competent driver.

Question 30

What is the LP for a claim in tort of negligence?

Answer 30

6 yrs from when the loss is sustained, NOT when breach of duty occurs.

Question 31

What is the LP for personal injury (PI) cases?

Answer 31

Runs from the date of C’s knowledge so when the C knows certain facts like the identity of the D.

Question 32

What is the LP for children in tort?

Answer 32

3 yrs but it starts on their 18th bday, NOT when the injury happens.

It expires on their 21st bday.

Question 33

If a newly qualified doc seeks advice from an experienced doc and that experienced doctor gives her the wrong dose for the client but the NQ doc administers that dose and the C suffered an adverse reaction…

What is the standard of care?

Answer 33

Hypothetical, competent person.

Question 34

True or false?

Only reasonable + proportionate steps should be taken by parties to identify, narrow and resolve expert issues.

Answer 34

True. Parties should only take reasonable + proportionate pre-action steps.

Question 35

What does the court order if the D fails to engage in ADR?

Answer 35

Order D to pay additional costs, AKA costs on an indemnity basis.

Question 36

What is the purpose of damages re breach of contract?

Answer 36

To put C in a position they would have been in had the contract been properly performed.

Question 37

Factors a court would balance in deciding whether or not there was a breach of duty?

Answer 37

Foreseeability of both risk of harm + severity of potential injury…

Costs of taking precautions…

Public benefit…

Common practice…

Question 38

When would there be an ‘own conflict of interest’?

Answer 38

A situation where a solicitor’s duty to act in the best interest of the client in relation to the matter conflicts with the solicitor’s own interests in relation to the matter.