FLK1 DR Key Pre-Action Steps Flashcards
Explain S14 Sale of Goods Act 1979.
The product must be of satisfactory quality.
S14(2B): The product must be satisfactory in appearance, finish and durability.
Explain S14(3) Sale of Goods Act 1979.
Product must eb fit for that specific purpose.
What happens if the implied terms of the contract are broken?
The suffering party can:
- Treat the contract as repudiated;
- Reject the product +
- Seek a full refund of the purchase price.
When does the suffering party lose the right to reject, and give statutory evidence?
Under s11(4), if the party accepted the product, they lose the right to reject.
When the party loses the right to reject, what will they only be able to claim?
They can only claim for breach fo warranty.
How do you measure damages for breach of warranty?
Difference between the value of the product at time of delivery + value it would have been if D fulfilled the warranty.
What is the Limitation Period (LP) for a simple contract action?
6 yrs from the date on which the cause of action accrued (s5 LA 1980).
When would mediation be used?
When the dispute is relatively straightforward and it will be the most cost-effective way of resolving the dispute.
By para 16 PD, what financial sanctions may the court impose, even if the C is successful in the proceedings?
- Order that C pays all or part of D’s costs of proceedings.
- Order that C pays those costs on an indemnity basis (pays more of D’s costs than they would normally pay)
- Order depriving C of interest on amount recovered for specified period, and/or awarding interest at a lower rate than otherwise.
True or false?
Breach of contract, negligence, misrep + nuisance are all examples of a cause of action.
True.
What do solicitors mean when they are trying to establish the cause of action?
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.
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.
True.
For the purposes of civil DR, is there a difference between a partnership and a limited liability partnership?
Yes. They are different legal persons.
LLP: limited liability
Partnership: partners fully responsible.
When does time under the relevant LP cease to run?
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.
Why is it false to say that the LP for contract breach claims is always 6 yrs?
Because you need to check if a longer or shorter limitation period has been agreed between the parties - look at contract.
When can the court impose a costs sanction on a party re ADR?
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.
Are the parties in arbitration bound by the arbitration decision?
Yes, the parties are bound by the award.
What is the difference between remoteness and mitigation of loss?
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.
When is the cause of action in a contract breach claim?
When the statutory implied terms were broken - read the facts.
How do you calculate the amount of damages that a C can claim?
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.
When would there be a variation of the usual LP? When there is a written contract or oral contract?
Written contract and what was agreed between the parties. They could have extended or shortened the LP.
Example of determining the cause of action in a breach of contract claim?
The day which the product of the same quality as the sample should have been delivered.
Fundamental legal principle re LP’s?
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.
Cause of action in negligence when the C is a child?
3 yr L-PI-P doesn’t run until they turn 18 and then the LP expires on their 21st bday.
