Resolving a Dispute Through a Civil Claim Flashcards
What is the significance of the Limitation Act 1980?
It outs tie limits on when claims can be brought, imposing these on the claimant. It is important solicitors are aware of these strict deadlines in order to effectively lodge any claims for their client’s before these deadlines.
What could happen to the solicitor if they fail to issue proceedings before then limitation period expires?
Client will have instructed them to initiate proceedings. If they do not do so in time, they may face a negligence claim.
What happens if the claimant misses the limitation period?
The defendant will have a technical defence to the claim. If the judge agrees the period has expired, the claimant will not succeed in the litigation.
what is the basic limitation period for claims founded on contract/ tort?
Set out in section 2-5 of the Litigation Act 1980, claims on contract and tort state that the claimant has 6 years from the date of the cause of action to commence their proceedings and time runs from this point.
What important consideration is needed when considering the limitation period for claims tort and contract?
Contract - cause of action accrues as soon as the breach of contract occurs (this is a question of fact determined by the court);
Tort - cause of action accrues when the tort is committed. In negligence, this will be when the damage occurs as a result of a breach of duty.
What is the limitation period for personal injury matters?
- 3 years from date of the cause of action (or the date of which it is known the person is injured).
- Note this does not apply to children (as the limitation time limit does not start until their 18th birthday).
List the three potential limitation periods for negligence where damage is latent (hidden).
1) 6 years from the date of cause of action;
2) 3 years from date of knowledge of the damage (whichever is later).
Note that the claim cannot be any later than 15 years after the original negligent act/omission.
Other than limitation by statute, what else needs to be considered when analysing the limitation period for claims under contract?
Limitation provisions in the contract. This will often be much shorter than statutory limitations. Action MUST be taken during the contractually specified limitation period.
Can the limitation period be extended?
Yes but the court has full discretion on this. They will only condor an extension in exceptional circumstances.
Name two examples of when there will be two defendants in civil litigation.
1) Where an employee commits a tortious act in the course of their employment, both the employee and the employer should be sued (as the employer will also be liable vicariously).
2) Where a manufacturer and retailer are both being sued for a defective product.
Who are their safeguards in place for (ie meaning they have someone to act on their behalf)?
Children (ie under the age of 18) and protected parties (a person incapable of managing their own affairs as defined by the Mental Capacity Act 2005). For children this will usually be a parent or guardian.
What safeguard is put in place for protected parties and children regarding settlements?
Settlements can only be valid where they are approved by the court.
Describe what a specified claim is.
A claim specified for a fixed amount of money; usually it is a claim for debt owed and therefore the award can be mathematically and factually calculated.
Example: price of good sold under express contractual terms and a dispute arising fro such.
Describe was an unspecified claim is.
Court will have to conduct an investigation to determine amount of money payable under the claim (eg most likely with damages especially for things like loss of amenity or loss of profits).
Does encouraging a client to pursue an non-winnable case breach code of conduct?
Most likely yes. This would not be acting in the clients best interests.