Parties and Causes of Action Flashcards
how is an individual referred to?
full unabbreviated name - using Mr, Mrs, Ms
e.g., Mr / Ms / Mrs. John James Smith
how is a partnership referred to?
name of partnership at the time the cause of action accrued and (a firm) + name of individual partners
better to include names of partners individually so that enforcement against their personal assets is easier
Example: Flagstones (a firm) and / or (1) Fred Flagstone (2) Nisha Rouble
how is a sole trader referred to?
individual (trading as [name of sole tradership])
example: John Flagstone (trading as John’s Café)
how is an LLP referred to?
name of LLP + ‘LLP’
example: Flagstones LLP
how is a company referred to?
name of company + either ‘Limited’ or ‘plc’
example: Rockstone Limited
how is a trust sued?
Claim can be brought by / against trustees, executors, or administrators
not necessary to add Bs as parties to the claim (but court order will bind Bs)
can children or protected parties lacking mental capacity bring or defend claims?
no - but can be represented by a litigation friend
docs must be served on litigation friend
also the court must approve any settlement, payment, acceptance of money into court for claims involving children / protected parties
how is a child referred to?
child + litigation friend
example: Alice Brown (a child suing by Kate Brown her mother and litigation friend)
what is the case analysis of a cause of action? (6)
(1) duty = establishing a contractual and / or tortious duty owed by D to C
(2) breach of duty
(3) causation = did D’s breach cause C loss?
(4) loss = remoteness of loss, quantification of loss, C’s mitigation of loss, contributory negligence, contribution by other parties
other issues:
(5) parties = who are parties, more than one C or D, contribution or indemnity claims?
(6) limitation issues
why is it important to conduct a case analysis of the cause of action early on? (4)
(1) informs client’s decision to bring or respond to a claim on the merits of their case
(2) informs the strategy
(3) assist to estimate and budget costs
(4) consider potentials for settlement and whether this is more desirable and less risky than litigation
must be reviewed and can change throughout the case as facts emerge
what is the civil standard of proof?
on a balance of probabilities
more likely than not to have happened
what is the burden of proof?
- The burden of proving any issue of fact or law generally falls on the party who asserts it
- C must prove = duty, breach, causation, and loss for negligence/contract
- D must prove = contributory negligence , why the defendant’s version of the facts is correct
