Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

SQE1 FLK1 > Resolving a dispute through a civil claim > Flashcards

Resolving a dispute through a civil claim Flashcards

1
Q

what are pre-commencement matters in civil litigation?

A

steps taken before civil claim is formally started in court.
most of the solicitor’s work happens at this stage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

what is the purpose of filtering weak claims before starting a civil case?

A

to identify + avoid claims that are weak or lack evidence, preventing unnecessary costs for the client

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

why is settlement often preferred over going to court in civil disputes?

A

settling dispute w/o court = usually in the best interest of both parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

reasons that might prevent a claim from proceeding?

A
  1. time limits: C may have waited too long
  2. funding issues: C may not have financial resources to pursue claim
  3. D’s financial worth: D may not have means to pay judgment, making the claim impractical
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is the 1st thing to consider before issuing legal proceedings?

A

assess if the claim is legally valid + w/in time limits

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

why is it important to identify correct parties in a claim?

A

to ensure correct C + D are involved in the case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

why should D’s ability to pay be checked before proceeding?

A

to see if the D has enough resources to satisfy a potential judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what does evaluating the merits of a case involve?

A

checking strength of evidence + legal arguments to assess if the claim is worth pursuing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

what are pre-action steps in civil litigation?

A

required steps eg sending pre-action letter that must be taken before starting formal legal proceedings

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

what must solicitors check before acting for a client in civil litigation?

A

they must ensure there is no conflict of interest eg representing opposing sides in a related matter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what does the Limitation Act (LA) 1980 do?

A

sets strict deadlines for starting a legal claim. missing these deadlines usually means the claim is statute barred
client loses right to sue, unless there are exceptional circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

what is the purpose of limitation periods in legal claims?

A

protect Ds from being threatened w lawsuits for old events

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What does the Limitation Act 1980 establish?

A

It sets strict deadlines for starting a legal claim.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens if a limitation period is missed?

A

The claim is usually statute-barred, and the client loses the right to sue unless there are exceptional circumstances.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the purposes of limitation periods?

A

To protect defendants from constant threat of litigation for old events and to address practical issues like loss of evidence and unreliable witness memories over time.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is a solicitor’s responsibility regarding limitation periods?

A
  1. Identify when the limitation period starts and ends based on the type of claim.
  2. Diarise key dates to track the limitation period.
  3. Avoid negligence by ensuring proceedings are issued before the deadline.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

How can a solicitor avoid negligence in handling limitation periods?

A

By issuing proceedings before the limitation period expires.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What must be done to preserve a client’s legal rights within the limitation period?

A

Proceedings must be issued before the limitation period expires.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Why is it important to track limitation periods?

A

To ensure proceedings are issued on time and avoid negligence claims against the solicitor.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What happens if a claimant misses the limitation deadline?

A

The defendant can raise a technical defence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is a technical defence under the Limitation Act 1980?

A

The defendant argues that the claim is statute barred because the limitation period has expired.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the outcome if the court agrees with the technical defence?

A

The claimant’s case will fail, regardless of its merits.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is the general effect of missing a limitation period?

A

The claimant is unable to proceed with the litigation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is the limitation period for contract claims?

A

6 years from the date of the breach of contract.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

When does the limitation period start for a contract claim?

A

From the date the contract is not performed as agreed (breach).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What is the limitation period for tort claims (excluding personal injury and latent damage)?

A

6 years from the date the damage occurs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is the limitation period for personal injury claims?

A

3 years from:
* The date of the injury, or
* The date the injured person first had knowledge of the injury.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

When does the limitation period for personal injury claims start for children?

A

On their 18th birthday.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is the limitation period for latent damage (negligence)?

A

6 years from the date the damage occurred, or 3 years from the date the claimant first knew about the damage, whichever is later.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is the absolute time limit for latent damage claims?

A

No claim can be brought more than 15 years after the negligent act or omission.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

When is the cause of action excluded in limitation period calculations?

A

The date the cause of action accrues (e.g., breach of contract or damage) is excluded.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

If a contract is breached on 10 September 2024, by when must proceedings be issued?

A

By 10 September 2030.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

If property damage occurs due to negligence on 5 January 2023, by when must proceedings be issued?

A

By 5 January 2029.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

If latent damage is discovered on 26 November 2024, by when must proceedings be issued?

A

By 26 November 2027 (3 years from discovery).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What is the limitation period for a simple contract claim?

A

6 years from the date of the breach.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What is the limitation period for tort claims (other than personal injury)?

A

6 years from the date the damage occurs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What is the limitation period for latent damage (negligence)?

A

6 years from the date the damage occurred, or 3 years from the date of knowledge, whichever is later.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What is the absolute limit for negligence claims?

A

15 years from the negligent act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

What should you check in contract disputes regarding limitation periods?

A

Check if the contract specifies its own limitation period for claims.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

How do contractual limitation periods compare to statutory periods?

A

They are often shorter than the statutory limitation periods (e.g., 6 years under the Limitation Act 1980).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Why are contractual limitation periods important?

A

If a shorter period is specified in the contract, the claimant must issue proceedings within that period, not the statutory period.

42
Q

What action should be taken regarding contractual limitation periods?

A

Always review the contract for limitation clauses before deciding the deadline for issuing a claim.

43
Q

What is the general rule on claims outside the limitation period?

A

Claims outside the limitation period are generally not allowed to proceed if the defendant raises it as a defence.

44
Q

Are extensions of the limitation period common?

A

No, extensions are rare and granted only in exceptional circumstances.

45
Q

What happened in the case of A v Hoare [2008]?

A
  1. The claimant sought damages against a defendant convicted of sexual assault in 1989.
  2. The court allowed the claim despite being outside the usual limitation period due to exceptional circumstances (the defendant’s significant financial gain after the crime).
46
Q

What action should a solicitor take in exceptional cases?

A

Apply for an extension of the limitation period, but note that it is not guaranteed and depends on the specific facts.

47
Q

What is limitation in legal terms?

A

Limitation refers to the strict time limit within which a claimant must issue legal proceedings against a defendant.

48
Q

What does limitation determine?

A

The last possible date for filing a claim.

49
Q

What is the effect of limitation?

A

If a claim is issued after the limitation period has expired, the defendant can raise a complete defence, and the court is unlikely to allow the claim to proceed.

50
Q

What is the general rule if a claim is statute barred?

A

If the defendant proves the claim is statute barred, the court will generally not allow the action to continue.

51
Q

What determines the limitation period?

A

The type of claim (e.g., contract, tort, personal injury).

52
Q

When do statutory time limits apply?

A

Unless a shorter period is specified in the contract.

53
Q

Can limitation periods be extended?

A

Yes, but only in exceptional circumstances at the court’s discretion.

54
Q

Why is it important to identify the defendant(s) early?

A

To avoid unnecessary costs, such as amending court documents later.

55
Q

In most cases, how many defendants are there?

A

There will be one clear defendant.

56
Q

When are there likely to be multiple defendants?

A
  1. Employee and Employer: When an employee commits a tort in the course of employment, both the employee and employer should be sued, as the employer is vicariously liable.
  2. Retailer and Manufacturer: In defective product cases, both the retailer and manufacturer may be defendants.
57
Q

Who needs a litigation friend in legal proceedings?

A
  1. Children (under 18): They cannot manage their own affairs in legal proceedings.
  2. Protected Parties: Those incapable of managing their own affairs due to mental disorders (as defined by the Mental Capacity Act 2005).
58
Q

What is the role of a litigation friend?

A
  1. They must fairly and competently conduct the proceedings.
  2. They must have no adverse interest in the case.
59
Q

Why can’t a parent who is the defendant act as a litigation friend for their child?

A

It creates an adverse interest.

60
Q

What must happen to settlements involving children or protected parties?

A

They must be approved by the court to ensure fairness.

61
Q

Why is it important to know the defendant’s location?

A

To properly communicate the claim and, if necessary, serve legal proceedings.

62
Q

What should be done if the defendant’s location is unknown?

A

An inquiry agent can be used to help locate them.

63
Q

What happens if the defendant’s location is not determined?

A

It will not be possible to serve court documents or proceed effectively with the case.

64
Q

Why must the defendant be sued in the correct capacity?

A

Because they may have entered into a contract or committed a tort in different legal forms.

65
Q

What are the possible legal statuses of a defendant?

A
  • Individual
  • Sole trader
  • Partnership
  • Limited liability partnership (LLP)
  • Limited company
66
Q

What steps should be taken before proceeding with a claim?

A

Confirm the defendant’s legal status to ensure proceedings are brought against the correct entity.

67
Q

In Chantelle White’s case, how can the correct defendant be determined?

A
  • If Arjun Bajwa acted as an individual, sue him personally.
  • If he acted as part of a partnership, sue the firm (e.g., Bajwa & Co).
  • If he acted on behalf of an LLP or company, sue the LLP or company itself.
68
Q

Why is it important to assess the defendant’s financial viability?

A

To avoid pursuing a claim against someone who cannot pay a judgment, such as a bankrupt individual or a company in liquidation.

69
Q

What investigations can be carried out to assess the defendant’s ability to pay?

A
  • Search at Companies House for financial information about a company.
  • Conduct a bankruptcy search for individuals.
  • Use an inquiry agent to investigate financial status.
  • Perform internet searches for relevant financial information.
70
Q

What should be done if the defendant is found to be struggling financially?

A

Consider whether it is viable to proceed, as there may be no realistic chance of collecting the judgment.

71
Q

What are the two types of claims?

A
  • Specified Claims: Fixed amounts that can be easily calculated.
  • Unspecified Claims: Amounts not fixed and require the court to determine.
72
Q

What are examples of specified claims?

A
  • A debt owed for goods sold or services rendered.
  • Commission due under an express contract.
73
Q

What are examples of unspecified claims?

A
  • Damages for breach of contract.
  • Loss of profits, where the exact amount needs to be determined by the court.
74
Q

In Merlin Events Ltd vs. Janice Star, why is the claim unspecified?

A

The claim for loss of profits requires the court to determine the amount, making it unspecified.

75
Q

What should be done when drafting court documents?

A

Determine whether the claim is specified or unspecified, as this affects the legal procedure.

76
Q

What is the lawyer’s responsibility during case analysis?

A

To act in the client’s best interests by not encouraging them to pursue a hopeless case or one with limited chances of success.

77
Q

What is the purpose of the initial client interview?

A

To take full instructions, understand the client’s issue, and offer a reasonable solution at an affordable cost.

78
Q

What key issues should the solicitor address during preliminary advice?

A
  • Liability: Who is responsible.
  • Quantum: The amount of damages or compensation.
79
Q

What should be ensured before proceeding with a case?

A

That the client’s case is viable and the potential outcomes, uncertainties, and risks are clear.

80
Q

What is a cause of action?

A

The legal reason for bringing a claim, such as breach of contract or negligence.

81
Q

What evidence must be analysed to assess a cause of action?

A
  • Oral evidence from the client and witnesses.
  • Documentary evidence.
82
Q

What are common causes of action?

A
  • Contract Claims: Breach of contract causing loss.
  • Tort (Negligence): Breach of duty of care causing loss.
  • Tort (Nuisance): Unreasonable interference with the use or enjoyment of land.
  • Misrepresentation: False or misleading statements inducing a contract.
83
Q

What is the purpose of damages in each type of claim?

A
  • Contract Claims: To put the claimant in the position they would have been in if the contract had been performed.
  • Negligence: To restore the claimant to the position they would have been in if the negligent act had not occurred.
  • Nuisance: To restore the claimant to the position they would have been in if the nuisance had not occurred.
  • Misrepresentation: To return the claimant to the position they were in before entering the contract.
84
Q

What action should be taken regarding causes of action?

A

Identify the cause of action early, assess evidence, and advise the client on the likelihood of success.

85
Q

What is the purpose of pre-action protocols?

A

To encourage early resolution and proper conduct before court action begins.

86
Q

What are some specific pre-action protocols?

A
  • Debt claims
  • Personal injury
  • Construction and engineering
  • Professional negligence
87
Q

What if no specific protocol applies to a case?

A

The Practice Direction on Pre-Action Conduct and Protocols (PDPAC) provides general guidance.

88
Q

What are the objectives of the PDPAC and protocols?

A
  • Promote early communication between parties.
  • Encourage fair and early dispute resolution.
  • Ensure efficient court proceedings if litigation is necessary.
89
Q

What is the solicitor’s responsibility regarding the PDPAC?

A

To apply the protocols correctly and help resolve disputes before court involvement, if possible.

90
Q

What penalties may result from non-compliance with the PDPAC?

A
  • Costs order requiring payment of the opponent’s costs.
  • Loss of interest on damages for the claimant.
  • Higher interest on damages for the defendant.
91
Q

What happens if a party knowingly makes a false statement in pre-action documents?

A

They may face contempt of court proceedings.

92
Q

what’s the 1st step in international disputes?

A

determine which country’s laws apply to the case

93
Q

how has brexit affected jurisdictional rules in international disputes?

A

EU jurisdictional rules no longer apply to the UK, and each country now uses its own domestic rules in cases involving the UK

94
Q

why should contracts state the governing law?

A

to avoid uncertainty in case of dispute + provide clarity on which country’s laws will apply

95
Q

can parties choose the governing law for a contract?

A

yes, generally they can, but some laws eg UCTA 1977 may override this choice

96
Q

what happens if a governing law is agreed upon in a contract?

A

case will proceed based on that agreed law

97
Q

what happens if no governing law is chosen in a contract?

A

default provisions will determine the applicable law, leaving the parties w/ no control over which law applies

98
Q

what issues can arise in disputes heard in foreign courts?

A

contentious issues about which law applies can complicate matters before proceedings even begin

99
Q

how does english law differ from laws of scotland + NI?

A

english law: law of E&W, while S + NI have separate legal systems w/ some differences

100
Q

why is it important to agree on applicable law + jurisdiction in UK contracts?

A

to avoid extra costs + complications in enforcement due to differences in legal systems across regions

101
Q
A

SQE1 FLK1 (11 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions