SPA DISPUTE RESOLUTION Flashcards
SPA K
Research
Client - Felicity Devlin
Matter - Service of Proceedings in Mexico
-seriously injured while crossing the road in Ilkley, Yorkshire
-river of the van, Jaime Gomez, is a Mexican national who was on holiday in England and has returned to Mexico.
-sent letter of claim
-independent witness corroborate our client
-wish to issue proceedings in the Courts of England and Wales
Client wish to know
-basis on which Mr Gomez can be served with the Claim Form in Mexico
-process to be followed including the likelihood of success and any relevant time limits
Structure:
Client
Matter
Date
Advice
-Summary - our client seriously injured, driver failed to stop, identity, indepepent witness, service of claim form,
-Asked to research service in Mexico, report on procedure, success and time limit
issue 1 - claim form out of jurisdiction
-CPR 6.32 and 6.33: not necessary to seek court permission to serve claim form out of jurisdiction
*Not apply on facts as personal injury is not one which Court of England and Wales has power to determine under CJJA 1982 or Hague Convention
-Mexico is signatory to Hague, but PI excluded from ambit by Article 2
-Therefore CPR 6.36 apply where Court permission required
-Part 6 Court’s procedure and various grounds Court give permission to serve claim form outside jurisdiction
-Claim arises from negligence occurred in England, subsequent injury and losses in England
-Ms D claim based in negligence, Mr G driving below skill and care required of motorist - client injuries sustained in jurisdiction
Issue 2 - appropriate procedure serve claim form out of jurisdiction
-CPR 6.37 - formal app to court for permission
a. Ground relied on permission - client tort and damages, C injuries
b. C believe reasonable prospect of success - evidence set out client version of events and negligent driving
c. D address in Mexico - client obtained as successfully corresponded, Mr D responded deny fault
Issue 3 - likelihood of app successful
-CPR 6.7(3) - court not permission unless satisfied that England and Wales proper place to bring claim
-Accident in England, Ms D and witness are resident
-Claim no connection with Mexico except D is resident
-Factors suggest England and Wales as proper place
Issue 4 - time limit
CPR 7.5(2) - within 6 months if out side jurisdiction
-Runs from date of issue claim form NOT date of order giving permission
Conclusion
-Client must apply
-Case falls with grounds for successful app
-Subject to obtain permission, claim form must be served within 6 months date of issue
SPA L
Drafting
Client - Mohammed Khan
Matter - Dispute with Swedish Steam and Sauna
Task - draft Particulars of Claim
*Review draft and amend errors in track changes
Facts
-installation of a sauna and steam room
-business premises at The Old Print Works, Roundhouse Lane,
Didsbury, Manchester M21 5XZ. MK trades as Fit Stop UK
-work took longer than SSS had agreed
-installation and/or supplied equipment defective resulting in injuries to him and other losses
-medical report detailing MK’s injuries from Mr. Frank Andrews, Consultant Plastic Surgeon at
Nuffield Hospital, Manchester M1 4FF
-MK’s date of birth is 14 July 1967
- obtained counsel’s opinion and she is of the view that the damage
for the injuries alone will exceed £5,000
-schedule of special losses for MK’s financial losses, excess of £20,000.
-January 2019 MK decided to extend his premises at the rear of the property to accommodate a new sauna and steam room
-specialist work so he engaged Cosy
Saunas (‘CS’)
-CS were due to commence work on 21 November 2019 and MK closed the gym to the members for a period of 3 weeks from that date to allow the works to be carried out, reimbursing a total of £25,000 in membership fees to the defected members. Unfortunately, on 18 November 2019 MK was informed that CS had ceased trading and that they would not be able to carry out the work as planned.
-Found alternative fitters SSS, fee considerably higher than CS
-start work the following Monday (2 December 2019) and would g
the work done by 16 December 2019, which was the original completion date
-No written evidence but total price of £35,000 and timings were
agreed over the telephone in a call on 24 November 2019 between MK and Robin Rose, SSS’s Chief Technician
-insistent about the completion date and that he paid a deposit of £5,000 insistent about the completion date and that he paid a deposit of £5,000
-SSS finished work 6 Jan 2020, 3 weeks longer than agreed
-£25,000 in lost membership fees
Fault:
-Wooden slats forced into place, bowed instead flat, uncomfortable lie down
-Rubber seals around doors between sauna and steam room not work, so neither used
-Fell asleep lying in sauna and suffered burns to face, arms, legs
-Ongoing treatment
-Returned to business premises, receptionist said SSS turned up to do electrics - refit broken thermostat - broken as if worked would have switched off sauna once reached 80c, not suffered burns
-Remedial works £10,000.
Review markup:
Parties
-Specify Claimant company - t/a (trading as)
-Defendant - Limited
Clauses
1-Claimant details - sole owner of company, members-only, address (CPR PD 16 - state address)
2- Date of contract, parties to contract, specify precise details - equipment
3-Specify breach - late completion, took longer than 14 days, communicate expectations that time was of essence
4-Contract price, paid deposit
5-Communicate what is relied on - express or implied term; here implied reasonable care and skill
6-Implied term - satisfactory quality, fit for purpose
7-Include contract and tort - CRA implies DOC
8-Exchange of information - by email
9-Carried out inspection on date, found numerous defects
10-In breach express and implied contractual terms, common law duty of care; not complete work agreed timescale, necessary care and skill, supply equipment satisfactory quality and fit for purpose
Particulars of breach/negligence (to show contract, tort)
10.1 Spell out expectation - time completion exceed agreed contractual requirement
10.2 Spell out details - wooden slats
10.3 Details - rubber seals
10.4 Details - thermostat
11-Consequence of breach - business remain closed 21 days longer, loss of income, arrange remedial repairs
12-Consequence of breach - caused injuries re thermostat, copy of medical report incl address
Particulars of loss and damage
12.1 lost income, amount
12.2 cost of remedial work, amount
12.3 damages for pain, suffering, loss of amenity,
12.4 damages for past, ongoing, future losses from injuries
13 damages, claim interest under s69 CCA 1984
AND THE CLAIMANT CLAIMS
1. damages pursuant 12 para above
2. interest pursuant to para above
*Signature line for solicitors
Statement of truth
*To be signed by claimant
Include C solicitor address, accept service on behalf
SPA M
Advocacy
Client: Sarah Khan
Re: Summary Judgment Application
Act for defendant
instructed to apply for summary judgment.
Attached docs:
-Particulars of Claim Defence Witness
-Statement of the Defendant in support of the application Witness statement
-present to Smith D
Structure:
-45 min prepare
-15 minutes conduct
Test for summary judgment:
* C has no real prospect of successfully succeeding on claim; OR
* D no real prospect of successfully defending claim
* No other reason why case or issue should be disposed
Structure
-Address judge correctly
-Summary of facts
-Submission
-Conclusion
Summary
-C and D are sisters, no intention to create legal rations
-C agreed to lend 10k school fees, though dispute loan
-D defend claim as gift
1st submission: 10k not intended to be anything but gift
*Associate with charitable gifts than loan
Meeting between 2 sisters
Took chocolate, cup of tea - indicative of social and family arrangement to give D money rather than business meeting for loan
2nd submission: no enforceable requirement since no legal intention
-Create legal relations - binding contract
-Presumption in domestic arrangements against creation of legal relation
-Reinforced by fact involved tea and chocolates
-Meeting between parties akin to social than business
Repeat test, note test met, charitable gift between two sisters
C has no real prospect succeed claim
-D witness statement,
para 4: D asked for “help” - more consistent with gift than loan
para 6: meeting at C hoes, chocolates, tea
-CY stated do not want education interrupted - family arrangement rather than business meeting
-No intention to create legal relations - exhibit sk1 specified “happy to let you have the 10k”
No other reason why case should be disposed
-Both parties have witness statement
-Comprehensively address circumstances to pay 10k school fees
-No other material witnesses
-No other material need to address 10k is gift not loan
Finish
Unless I can assist court any further, this concludes my submission
SPA U
CMA
Subject: Ilkley Hotels dispute with Smart Booking Solutions
Client - IH
Managing director - Joshua Smith
-IH small, family run business with 2 hotels in Ilkley, 13bdrm/each
-Average room prices
-Originally only website
-SBS developed online custom booking system
-Sales director RJ noted updates available within seconds
-JS agreed SBS develop and license software, compatible to develop software for 20k, annual licence fee 1k, payable for 5 years, terminable either party on 6 month notice
-No written contract set out terms
-Chain of email correspondence re IH requirements, agreed price
-Software installed 2 weeks ago, JS not satisfied as not update real time, all rooms fully booked, lose bookings
-IH ran old system in parallel
-Exchange of emails - threat by SBS to issue proceedings unless money paid within 7d
Advice and analysis required, provide as basis of letter to client
1.What options available to IH
2. Whether IH obliged to pay
3. Legal and practical steps to assess and protect company interests
-JS not pay until system work
-JS no objection meeting SBS representatives to discuss issue, find solution
Structure
-From: Supervisor
-Sent: date
-TO: candidate
-Subject: Case and Matter Analysis - Ilkley Hotels dispute with Smart Booking Solutions
-Intro: our client IH, dispute with SBS, this is CMA of client position
-Relevant facts
-Legal advice
-Legal and practical steps to resolve dispute
Relevant facts:
-IH entered contract with SBS for development software for custom-built room booking
-No wrrtiten agreement, but contract evidence through series of emails
-Agreed price 20k development work, 1k annual licence fee
-SBS demanding payment as claim completed agreed work but IH instructions and software not functioning correctly, want rectified before making payment
Legal advice
1. Existence and terms of contract
-Binding contract between parties, SBS develop software and IH pay price
-Agreemnet contains express and implied temrs
-Implied - SBS perofmr service developing software with reasonable care and skill
-Express - booking system update room availability within seconds, customer confirm booking info up to date, IH know availability
-Express term booking software compatible and integrate with IH website
-Express term IH pay agreed price once SBS performed obligations above
*Review email correspondence to ensure no additional relevant terms
- Whether IH obliged to pay now
-IH contract to pay price once SBS performed obligations and show software running
-According to IH, not case as software installed for 2 weeks now and not updating in real time
-Frequently indicated all rooms fully booked, so losing IH business
-No requisite skill and care
-IH entitled to withhold payment until SBS rectifies these problems
Legal and practical steps to resolve dispute
Evidence to be gathered:
-IH provide email chain, evidence contract and subsequent correspondence where SBS report problems experiencing
-Review for express terms IH alelging
-Proof of evidence from client detailing precisely what discussed in meetings when specification discussed
Applicability of Arbitration/ADR
-Any ref in correspondence in event of dispute
How revert SBS
-Write to SBS or solicitors to explain IH withholding on basis yet to comply with contractual obligations
-Suggest meeting between parties to explain nature of problem; SBS may not be open but conciliatory (willingness to reduce hostility) approach on receipt of formal solicitor letter
-SBS not commence legal proceedings as required to follow practice direction on pre-action conduct, take steps resolve claim w/o court proceedings
-Do so without folllowing practice direction
-PD set out basis of claim for payment in letter of claim, respond in above terms
-Better to make points now than wait for letter of claim
-IH genuine complaint, take all reasonable steps to resolve than delay or avoid payment
-IH stronger negotiating position
-If unable to reach agreement, propose mediation as ADR rather than court proceedings
-If none then open to SBS commence legal proceedings for payment 3 months after send LOC which IH defend on basis SBS failure to carry out contractual obligations in respect of services
SPA W
Writing
Client: Caroline Olsen
Matter: Breach of Contract claim against Matthew Simpkins T/A Pipe Dreams
-CO interior designer
-obtained judgment for £25,000 inclusive of interest
against Matthew Simpkins t/a Pipe Dreams for defective installation of a bathroom
-case allocated multi-track
-Judge found D not done necessary standard work
-MS not represented, ignored our correspondence
-Next steps to obtain payment
Structure
-Client details
-Our ref
-Date
-Subject: Enforcing judgment against Matthew Simkins t/a Pipe Dreams
-Intro: set out point of letter, court enforce, next steps where need further deatils,
1-Procedure for oral examination
2-Taking control of D’s goods
3-Obtaining charging order over D’s property
4-Bankruptcy proceedings
5-Next steps
1-Procedure for oral examination
-Complete necessary court forms
-Serve them on D
-Date to attend court, answer Q under oath
-Specify address garage of cars, where legal owner, address both home and letting property
-Why need information
-Effective process as D can be imprisoned for contempt of court if fail attend, refuse answer Q, therefore incentivised to comply
-More definitive advice on enforcement
2-Taking control of D’s goods
-Enforcement agent bailiff to enter D’s premises and seize and sell any of D’s goods to value of judgment
-Most obvious 2 Lotus sports cars
-Address of garage where kept
-D legal owner, approximate value
-Determine at oral examination value of assets, not able to take control which D uses in business, or household items necessary
3-Obtaining charging order over D’s property
-If D owns property court allow create ‘charge’ on property
-Permit apply for property to be sold and debt paid from proceeds of sale
-Once granted charge, reg against property to prevent D from disposing property w/o paying off debt
-Establish address during oral examination of both properties - whether sole/joint, other charges
-Estimate how much properties worth - little point apply charge if existing charge secured on property exceed value
-Take priority if reg earlier
-Risk court not order sale of D’s home if make wife and child homeless
-More time-consuming, lengthy process
4-Bankruptcy proceedings
-Apply court to declare D bankrupt
-Tactical move, intention force D to pay before bankruptcy goes through
-Bankrupt cause immense problems, e.g. obtaining credit
-Unlikely proceed and may be useful method of enforcement
-If declared, chances recovering debt small as one of many unsecured creditors
-Hold back unless other methods unsuccessful
5-Next steps
-Complete necessary forms for oral examination
-Discuss options first, get in touch
Additional PFA
Drafting
Question
-Client: David Stonehill
-Matter: Proceedings against Online Oxbridge Limited
-Complete Particulars of Claim – insert/delete as required
Background
0DS is sole trader under ‘Bespoke Educational Solutions.’
-Agreed to do work for OOL re online MBA
-Not paid work and want to issue proceedings
-Attempted to settle but no avail
-Completed pre-action protocol
-See attendance note
-Assume today’s date is 10 January 2025, which is 93 days from 9 October 2024.
Attendance note
* DS spoke to officer Natasha Miller by phone on 20240502, agreed to complete work by 20241001 for 10k
* Payment made within 7 days presenting invoice with final version of work
* Interest 12% if after deadline
* Handwritten notes of call made
* Did work and submitted course materials and invoice 20241002
* Repeatedly chased debt and offered to mediate but told Ms Miller material does not meet necessary standard and payment not made without significant revision
* DH stated material exactly form agreed and correct standard – real reason not pay as recruited too few students and decided not to run course – who is DH? Mean DS typo?
* Firm to represent him and draft and issue claim form w/ POC
Attendance note
-DS spoke to officer Natasha Miller by phone on 20240502, agreed to complete work by 20241001 for 10k
-Payment made within 7 days presenting invoice with final version of work
-Interest 12% if after deadline
-Handwritten notes of call made
-Did work and submitted course materials and invoice 20241002
-Repeatedly chased debt and offered to mediate but told Ms Miller material does not meet necessary standard and payment not made without significant revision
-DH stated material exactly form agreed and correct standard – real reason not pay as recruited too few students and decided not to run course – who is DH? Mean DS typo?
-Firm to represent him and draft and issue claim form w/ POC
-Input names of parties
Particulars of claim
1. describe C and D
2. describe agreement and method of agreement
3. describe work due date
4. describe agreed fee
5. describe handwritten notes
6. describe course materials and invoice
Particulars of breach
7. D did not pay C
8. C repeatedly chased debt and mediate, told not necessary standard and payment not made
w/o revision
9. C states material exactly form agreed, correct standard
Particulars of loss and damage
10.1 Agreed fee
10.2 Interest of 12%
11. In respect damages awarded, C claim uner s69 CCA 1984 at such rate and for period as court thinks fit
AND THE CLAIMANT CLAIMS
1. damages pursuant to above para
2. interest pursuant to above para
Firm
Date
C details
C solicitors
To the court manager
PFA
Research
Question
-Clients: Fred and Jacqueline Keery
-Matter: Claim against Walter Benjamin limitation issue
-Client bought property 22 The Stray and now outgrown
-Walter Benjamin (WB) chartered surveyor, was convicted 2015 with mortgage fraud
-Overvalued properties in Harrogate area
-Including 2 properties next street
-Failed to mention properties’ non-standard construction – clients unaware
-Seek damages for amount overpaid
-Tasks
1-Research arguments to relevant limitation period apply to any breach of contract or negligence claim
2-Procedure necessary to follow evidence criminal conviction so clients can rely on as part of formal case
Structure
-Client
-Matter
-Date
Advice
-Intro: set out clients, bought house, survey issue, seek damages for amount overpaid
-Research what arguments to relevant limitation period
-Research what procedure necessary
-Limitation period normally 6 years
-Did know valuation until recently so may be able to use special time limit
-Procedure follow certificate of conviction
Process set out below
-Issue: whether claim for damages against Mr B barred by limitation period
-Special time limit for negligence actions
-Fraud and concealment
-Issue: procedure to follow evidence criminal conviction
-Conclusion: limitation period
-Issue: whether claim for damages against Mr B barred by limitation period
-s2 and 5: tort and simple contract; 6 years from accrual date; Keerys bought Jan 2013, so limitation period expired 2019
-Special time limit for negligence actions
-s14 for negligence actions where causes of action not known
-Extend limitation period 3 years from when plaintiff knowledge in bring action
-Claim may not be time barred
-Fraud and concealment
-s32 postponement of limitation period
-Not run until plaintiff discovered fraud
-May not be time barred
Cave v Robinson Jarvis & Rolf - D concealed facts relevant to C’s right of action
-Limitation period not run until C had discovered concealment
-Useful precedent for arguing Keery’s claim no t start until fraud/concealed by WB discovered
-Issue: procedure to follow evidence criminal conviction
-Mr B convicted in 2015, deliberate over value; clients were unaware
-PACE 1984 where s73 note certificate of conviction used as proof of conviction
-Specify substance and effect of indictment
-Obtain copy of WB conviction
-White Book Online CPR PD 16 - POC details of type of conviction, court made conviction and issue
-Conclusion: limitation period
-6 years from accrual date normally, but argue breach of contract or negligence from accrual extend as fraud or concealment
-2015 conviction - follow certificate of conviction
PFA
Advocacy
Client: Julia Gomez
Re: Summary Judgment Application
-Act for C
-D to install state-of-the-art wet room in her flat
-instructed us to issue proceedings against the Defendant
-not able to settle during pre-action protocol
Khan DJ in the Leeds County Court
Attached:
1. Particulars of Claim
2. Defence
3. Witness statement of the Claimant in support of the application
4. Witness statement of the Defendant opposing the application
Structure
-Introduction:
-Address judge: Leeds County Court - Judge
-Appear on behalf of C Julia Gomez today and seek to request summary judgment app
-App against D
-Check judge has documents
-Summary of facts
-Set out test
-Court has discretionary power under CPR to enter summary judgment
-Background
-Talk about contract, implied term reasonable care and skill
-Point out exact paragraphs
-Turn to submissions - no real prospect succeed at trial
-Repeat test - note test met
-Close
Test for summary judgment
CPR [Part 24], which
states that on an application by the Claimant the Court may grant summary judgment if
the Respondent/Defendant has no real prospect of successfully defending the claim
and there is no other compelling reason why the case should be disposed of at trial;
SUBMISSIONS
FIRST: handwritten note merely reflects applicant position that vague discussions took place re usage and ventilation
-Written quotation JG1 made no specific reference
-Existence of oral terms - need to have taken greater steps
-Lapse of time between making statement and discrepancy in expertise between parties are two key factors
-If intend contractual terms re usage and ventilation, then should have set out in full in quotation to show importance
-Inconceivable anyone would accept contractual terms limiting wet room usage
-Statements made by D are at best advisory - not intend contractual terms
SECOND: Agreement between parties concerning usage of ventilation of wet room, sufficiently clear and precise to amount to terms
-Even if contrary to first submission, found agreement between parties concerning wet room usage, clear and precise terms of contract, applicant did not breach either
-Para 8 of WS: only 2 people stayed in flat in absence
-Windows opened as per respondent instructions
-D only able to offer support to claim re four different people coming out flat = unsubstantiated hearsay - neighbour needed to have identified and submitted short statement
-Does not evidence respondent allegation
-Unclear how often occurred, no evidence suggest visitors actually used shower
THIRD: compelling evidence of respondent breach in expert opinion of Ms Short
-Compelling evidence from expert opinion of Ms Short
-Water should not leak from wet room where installation done correctly
-Exhibit JG2: para 3: respondent did not follow correct process for installing wet room
-Respondent did not carry out works with requisite care and skill as contract required
-Ms Short apply waterproof tape between joints of wall panels and floorboards - D failure which caused leak
-Respondent no evidence to rebut this, bare and unsubstantiated assertion in defence he did work with reasonable care and skill
-Para 10 WS: accepted not use tape if only 2 to 4 showers a day, no independent evidence
-Never term of contract that wet room restricted to max number
-For real prospect of success, D must offer why method used appropriate
-Submission he will not be able to do so were this matter to proceed to trial
FOURTH: no other compelling reason to proceed trial - all evidence required, overriding objective fairly enter judgment, prevent further costs
-Evidence relates to both liability and quantum in form of costings provided by Ms Short and Ms Milanova as exhibits JG2 and 3
-D provided no credible evidence
-No reason to believe able to do so if matter continued to trial
- The Applicant/Claimant’s case is that the court should exercise this discretion because the Respondent has no defence in law to the Applicant’s claim for breach of contract;
- contract was for provision of services to a consumer so implied term that those services be provided with reasonable care and skill;
- Respondent breached this term as water should not leak out of a bathroom causing damage to the rest of the property;
- The Respondent’s defence to the claim is that the contract included two express terms agreed orally between the parties concerning the number of people using the
bathroom and the Applicant’s obligation to ventilate it. - It is the Applicant’s case that these matters were mentioned only briefly by the Respondent as part of pre-contract discussions at a point where he had yet to visit the Applicant’s property or indeed provide a price for the job. Therefore, they do not form part of the contract but simply reflect discussions prior to the contract.
- Even if these were terms of the contract, there is no evidence the Applicant was in breach of either one whereas there is evidence from an expert that the Respondent did
not do the work correctly. - The Applicant has evidenced the loss so judgment could be entered for this amount or alternatively on liability for damages to be assessed if the court accepts the defendant’s contention that the amounts claimed are too high; therefore, there is no other reason why the matter should proceed to trial.
Conclusion
-Discretion enter summary judgment in applicant favour
-1. D no real prospect of successfully defending claim because allege damages caused by applicant own breach of contract
-Term breached never incorporate into contract
-App did not breach terms
-Compelling evidence show damage caused by respondent failing to carry out works with requisite skill and care
-Respondent failed to provide any independent evidence to contrary
-2. No other compelling reason why matter should proceed to trial
-Unless I can assist court any further, this concludes my submissions
