Law

Question 1

What is a contract?

Answer 1

• Agreement more than in informal/vague promise
• Legally binding
• Innocent party is entitled to compensation for losses if breached

Question 2

Why are contracts used?

Answer 2

• Setting expectations
• Clarifying risks and how they are managed
• Confirming ownership rights
• Time restrictions

Question 3

Key elements of a contract

Answer 3

• Offer
  
  • Definite promise; must be clear and certain
  • Basic terms of agreement and evidence/intention that no further bargening will occur
  • Invitation to treat: Different to an offer; is an invitaion to make an offer
• Acceptance
  
  • ​Orally/in writing
  • Must correspond with offer - no variations
  • Counter-offer can be made -> Battle of the Forms
• Consideration
  
  • ​Based on notion of reciprocity; cant have something for nothing
  • Law doesnt normally interfere
• Intention
  
  • Parties must intend to create legal relations
  • In commercial context assumption made that legal relations are intended
  • Negotiations usually on a ‘subject to contract’ bases
    *

Question 4

Battle of the forms

Answer 4

Arises when 2 parties wish to enter int a contract and each try to incorporate their T’s+C’s

Last T+C’s to be sent are incorportated

Question 5

Key contract points

Answer 5

• Don’t have to be in writing
• Lack of written ontract may mean misunderstandings etc.
• Some MUST be in writing (eg. those for transfer of land)

Question 6

Discharge of contract

Answer 6

• Bring a contract to an end
• Can be on completion of all terms of contracyt
• Parties may wish to vary contract by agreement
• Can be automatically discharged if become impossible to carry out (eg. acts of God)
• Breach of terms can entitle innocent party to compensation and to terminate contract

Question 7

Breach of contract

Answer 7

• Contract usually sets out what happens if breached

Question 8

Remedies of breach of contract

Answer 8

• Where parties cannot reach ammicable decision, courts will seek to place innocent party in same position as if contract had been performed

Question 9

Diminution v Cure

Answer 9

• Claimant may pay 3rd party to remedy breach and recover costs of doing so
• May claim for decerase/difference/diminution in value that has occured due to breach
• Court may decide which is more reasonable
• Court decides if cost of cure is proportional and if claimant intended to effect the cure

Question 10

Remedies of breach of contract

Answer 10

• Awards for non-financial losses (mental distress, personal injury etc.)
• Non-compensatory damage awards - go beyond requirement to place requirement in position as though contract was performed
• can punish defendant for breach but very rare
• Specific performance: breaching party compelled to perform obligations under contract at courts discretion
• Injunction may be granted requiring party to do/not do something under the contract

Question 11

Court System

Answer 11

Question 12

Limitation Period

Answer 12

• time to bring a claim
• Generally, claimants have 6 years to bring claim after contract breached
• IF contract executed as deed, claimant has 12yrs

Question 13

Pre-action protocols

Answer 13

• Pre-action protocols are rules and deadlines the parties should follow
• Before any legal court action can commence
• Purpose: encourage the parties to be transparent, identify issues and try to settle these issues between them
• There are different pre-action protocols depending on the type of claim – construction and engineeringdisputes are governed by their own distinct protocols
• Where no pre-action protocol exists, the parties are expected to comply with the generic“overriding objective”
• The court also expects alternative dispute resolution to have been considered

Question 14

Alternative Dispute Resolution

Answer 14

• Defined as a “collective description of methods of resolving disputes otherwise than through the normal trial process
• Types of ADR include:
  
  • Mediation
  • Adjudication
  • Negotiation
  • Arbitration

Question 15

Mediation

Answer 15

• Non binding
• Neutral party assits in reaching an agreement
• Mediator agreed or appointed
• Settlement agreement signed
• Parties remain control of whether or not to settle - more flexible than other forms of ADR

Question 16

The Basic Path of a Claim

Answer 16

Question 17

Level of Court

Answer 17

The level of court required to deal with any given claim will depend on the value and complexity of that claim

• Generally speaking, the High Court deal with matter in excess of £100,000 and anything below that is dealt with by the County Court
• The High Court is divided into the Chancery, Queen’s Bench and Family divisions
• The Chancery deals with matter such as bankruptcy, tax and IP
• The Queen’s Bench deal with breaches of contract, negligence and personal injury – the Technology & Construction Court is part of the Queen’s Bench

Question 18

Interim Remedies

Answer 18

• An interim remedy will bring a matter to conclusion before trial
• Summary Judgment involves the court disposing of the claim on the grounds that either the Claimant or Defendant has no real prospect of success
• A Claimant can apply for a Default Judgment if the Defendant fails to acknowledge the proceedings or file a Defence within the required time
• A Particulars of Claim or Defence may be Struck Out if they disclose no reasonable grounds for bringing or defending the claim, or if they amount toan abuse of court process
• They may also be Struck Out if a party fails to comply with a rule, practice direction or Court Order

Question 19

Final Remedies

Answer 19

The courts may order:

• Damages
• Injunctions
• Restitution
• Specific Performance
• Rectification/Rescission of a contract

Question 20

Appeals

Answer 20

• An appeal is the process by which a party (the appellant) seeks to change a Judgmentor Order of a lower court or tribunal bybringing it for reconsideration by a higher court (the appeal court)
• The court’s permission is needed before you can pursue an Appeal–you will need real prospects of success or some other compelling reason
• You can appeal all the way up to the Supreme Court, but their decision will be final

Question 21

Technology & Construction Courts (TCC)

Answer 21

• The TCC is the specialist branch of the High Court dedicated to hearing technology and construction disputes
• The TCC is based in London at the Rolls Building with ten regional centres supporting the court outside of London
• If you are looking at case law before 1998, it will refer to the TCC as the Official Referees Court
• The judges in the TCC also have an important jurisdiction in relation to arbitration
• There is a statutory jurisdiction enabling TCC judges to be appointed as arbitrator - his cross-over jurisdiction is an important link to commercialparties involved in construction, engineering and technology disputes

Question 22

Meaning of “Construction Contract”

Answer 22

• Wide definition, and includes contracts with construction professionals (i.e. architects, engineers etc).
• Defined in s104 of the Construction Act 1996 as an agreement with a person for: The carrying out of construction operations (whether by one of the parties or by a sub-contractor)
• Providing labour (either his own labour or others’ labour) for the carrying out of construction operations
• The contract must be enforceable in accordance with normal contractual principles.
• Can be in writing, partly in writing, or oral (Construction Act 1996)

Question 23

Adjudication

Answer 23

• Fast (28 day process)
• Contractual
• Right to adjudication any itme in a construction contract
• Binding but not final - can be appealed
• Cost effective

Question 24

Enforcement of Adjudication Decisions

Answer 24

• Via the Technology and Construction Court (“TCC”)TCC will enforce decision unless the adjudicator:
  
  • Exceeded his jurisdiction
  • Materially breached the rules of natural justice. “Natural justice” requires that every party has the right to a fair hearing and the right to be heard by an impartial tribunal.
  • Covers bias, failure to act impartially and procedural irregularity
  • No other rights of appeal/defence to this rough justice resolution
• If dissatisfied, take it to court or arbitration

Question 25

Timeline of an adjudication

Answer 25

Question 26

Arbitration

Answer 26

* Alternative to court * Based on contract * Final and binding * 1 or 3 members of arbitration tribunal * Confidential * Parties decide on procedure, rules, powers of tribunal * Courts can be involved in appointing arbitration, disputes as to powers of tribunal, enforcement of award

Question 27

Benefits of arbitration over Court

Answer 27

* Confidentiality * Flexible procedure * Choice of tribunal (choose arbitrators with relevant expertise) * Neutrality (of law, procedure, language, place) * Binding (limited grounds to challenge award) * Internationally enforceable (mainly via New York Convention)

Question 28

Arbitration – the cons

Answer 28

* MONEY MONEY MONEY!!! * Arbitration is inherently expensive, particularly if a party seeks to have 3 Arbitrators * It might be a commercial decision to proceed to Court, and avoid Arbitration

Question 29

Arbitration – Grounds for Appeal

Answer 29

* Challenging an arbitration award: * Incomplete or not addressed issues in dispute * Contains a clerical mistake, error or ambiguity * Tribunal lacks substantive jurisdiction (i.e. power to determine the dispute) * Serious irregularity affecting the tribunal, the proceedings or the award that has caused substantial injustice * Mistake of law (unique to UK Arbitration Act)