Resolving a Dispute Through a Civil Claim

Question 1

What is the significance of the Limitation Act 1980?

Answer 1

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.

Question 2

What could happen to the solicitor if they fail to issue proceedings before then limitation period expires?

Answer 2

Client will have instructed them to initiate proceedings. If they do not do so in time, they may face a negligence claim.

Question 3

What happens if the claimant misses the limitation period?

Answer 3

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.

Question 4

what is the basic limitation period for claims founded on contract/ tort?

Answer 4

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.

Question 5

What important consideration is needed when considering the limitation period for claims tort and contract?

Answer 5

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.

Question 6

What is the limitation period for personal injury matters?

Answer 6

• 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).

Question 7

List the three potential limitation periods for negligence where damage is latent (hidden).

Answer 7

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.

Question 8

Other than limitation by statute, what else needs to be considered when analysing the limitation period for claims under contract?

Answer 8

Limitation provisions in the contract. This will often be much shorter than statutory limitations. Action MUST be taken during the contractually specified limitation period.

Question 9

Can the limitation period be extended?

Answer 9

Yes but the court has full discretion on this. They will only condor an extension in exceptional circumstances.

Question 10

Name two examples of when there will be two defendants in civil litigation.

Answer 10

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.

Question 11

Who are their safeguards in place for (ie meaning they have someone to act on their behalf)?

Answer 11

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.

Question 12

What safeguard is put in place for protected parties and children regarding settlements?

Answer 12

Settlements can only be valid where they are approved by the court.

Question 13

Describe what a specified claim is.

Answer 13

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.

Question 14

Describe was an unspecified claim is.

Answer 14

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).

Question 15

Does encouraging a client to pursue an non-winnable case breach code of conduct?

Answer 15

Most likely yes. This would not be acting in the clients best interests.

Question 16

Define cause of action.

Answer 16

Cause of action is the basis for a claim, such as a breach of contract or negligence.

Question 17

What analysis points would a solicitor consider in a claim for breach of contract?

Answer 17

1) Existence of Contract - must determine there was a contract;
2) Terms - must determine which terms were relied on;
3) Breach - that there was a breach of these contract terms (express or implied);
4) Consequences - must determine the factual consequences of the breach;
5) Damage and Loss - each item of loss claimed will have to be proven.

Question 18

What must be complied with before issuing court proceedings?

Answer 18

Pre-action procedures. these are annexed to the Civil Procedure rules and are known as pre-action protocols.

There are specified protocols for claims regarding: debts, personal injury, construction, professional negligence etc. If there is no specified protocol. the Practice Direction and pre-action protocols must be complied with (PDPAC).

Question 19

What does paragraph 8 of PDPAC instruct parties to do prior to commencing litigation?

Answer 19

Parties must give consideration to ADR.

Question 20

What does the PDPAC state parties should do to show they took proportionate steps to resolve the matter?

Answer 20

Claimant must write to defendant summarising the claim, the sum due and how the amount was calculated. the defendant should then respond, within 14 days for straightforward claims, and within a maximum of three months for complex claims.The defendant’s response should include confirmation as to whether al or part of the claim is accepted, and if not the reasons why and any details of any counter claim.

Question 21

Where non-compliance with Practice Directions or approved protocol for that form of dispute have not been followed, and this then leads to unnecessary proceedings/ costs, what 3 main penalties can the courts impose on the parties?

Answer 21

1) The party ay fault pays some or all of the opponents costs;
2) Depriving a claimant who is at fault of some or all of the interest they may be awarded on any damages recovered;
3) Requiring D who is at fault to pay interest on damages awarded to C at rate of 10% pa above the base interest rate.

Question 22

What is the penalty for making a false statement in a pre-action protocol letter (or other documentation prepared in anticipation of legal proceedings?

Answer 22

They may face an action for contempt of court.

Question 23

Which rules govern:

a) Debt Claims;
b) Professional Negligence Claims;

Answer 23

a) Pre-Action Protocl for Debt Claims;
b) Pre-Action Protocol for Professional Negligence Claims.

Question 24

Explain the pre-action procedure for debt claims under the Pre-Action Protocol for Debt Claims.

Answer 24

• C must give full info on debt owed (including updated statement of account and details of any interest and charges). they must also detail how the debt can be paid. C should send with this a standard reply form, information sheet and financial statement forms (annexed to the debt protocol rules).
• D is given 30 days to respond. Court proceedings cannot be issued until 30 days have elapsed.

Question 25

Explain the pre-action protocol for negligence claims.

Question 26

Define mitigation of loss.

Answer 26

Mitigation of Loss: concerned with what happens after a tortious act breach/ breach of contract. Injured party cannot recover damages for loss, whether caused by breach of contract or a tortious breach, which could have been avoided by taking reasonable steps. Often called the duty to mitigate loss as requires C to take steps to minimise its loss/ avoid unreasonable steps that increase loss.

Question 27

Define remoteness.

Answer 27

Concerns what happens before or at time contract was made or duty under tort arose. Effectively refers to the causation test used to determine the types of loss caused by a breach of contract or duty which can be compensated by damages awards.

Regarding contracts, remoteness test identifies what was in the reasonable contemplation of the parties when entered contract. Recent cases suggest the test concerns identifying scope of implied assumption of responsibility by D in the contract.

Regarding torts, trust is whether the kind of damage was reasonably foreseeable by D at time of breach of duty.

Question 28

True or False: Under the Practice Direction on Pre-action Conduct and Protocols, the parties should consider the possibility of reaching a settlement at all times, including after proceedings have been started. If proceedings are started, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court financially punishing that party.

Answer 28

True.

Question 29

True or False: Arbitration is a voluntary process but the parties are bound by the arbitration decision (known as an award).

Answer 29

False.

Question 30

True of False: The court may impose a costs sanction on a party if it unreasonably refuses to take part in an alternative dispute resolution (ADR) process proposed by another party

Answer 30

True.

Question 31

True or False: The limitation period for making a claim based on breach of a contract is always six years.

Answer 31

False. Always crucial to check if contract specifies shorter limitation period. This overrides the regulations.

Question 32

True or False: In any action for damages for negligence, where at the time the cause of action accrues the damage in question is unknown, the limitation period is three years from the date of knowledge of the facts that justify embarking on the preliminary steps to the starting court proceedings.

Answer 32

True.

Question 33

True or False: For the purposes of civil dispute resolution there is no difference between a partnership and a limited liability partnership.

Answer 33

False. They are different legal mediums. LLPs are a separate legal entity.

Question 34

True or False: Breach of contract, negligence, misrepresentation and nuisance are all examples of a cause of action.

Answer 34

True.

Question 35

Explain the pre-action protocol requirements specific to professional negligence claims.

Answer 35

1) first additional requirement - C must notify the professional in writing of their claim. This letter is called the preliminary notice. It contains info about C, outlines their grievance and where possible a general indication of financial value of the compensation they seek. the professional should be instructed to inform their insurer immediately and must acknowledge the notice within 21 days of receipt.

2) Letter of Claim - C should write a letter of claim detailing in full the issues and any ket docs. Professional again must acknowledge receipt within 21 days. They have 3 months to then investigate and respond.

3) D responds to the letter of claim through a Letter of Response - sets out whether the professional admits allegations and if not why they don’t (with any key docs attached). Letter of settlement may be sent by professional if they with to settle all or part of the claim. If they respond refusing allegations, C can start court proceedings (provided general pre-action steps have been followed eg consideration to ADR etc).

Question 36

In instances of professional negligence, claimant and defendant may choose to instigate negotiations. If these fail, what is needed before court action can be taken?

Answer 36

A final stocktake in which parties review the position and narrow down the issues prior to court action being taken.

Question 37

What key factor needs to be established prior to commencement of litigation?

Answer 37

Jurisdiction. this is usually contained within a contract (for contract disputes) but if not, parties will need to agree this as a preliminary matter.