Causes of Action and Remedies in Non-PI Claims Flashcards Preview

Civil Litigation (2) > Causes of Action and Remedies in Non-PI Claims > Flashcards

Flashcards in Causes of Action and Remedies in Non-PI Claims Deck (29)
Loading flashcards...
1
Q

When will the client be entitled to a remedy?

A

When they can establish a legal cause of action as loss on its own is not sufficient

2
Q

Legal components of an action

A

Liability, causation, quantum

3
Q

What’s needed for liability in breach of contract?

A

That there’s a contract (offer, acceptance, consideration and intention to create legal relations) and a term of the contract has been breached

4
Q

What’s needed for liability in negligence?

A

That the defendant owed a duty of care to the claimant ans subsequently breached it

5
Q

Where the parties are jointly liable-

A

Either party is liable up to the full amount

6
Q

Where the parties are severally liable-

A

The parties are only liable for their respective shares

7
Q

Joint and several liability

A

The claimant can choose who to pursue (joint) but one of the defendants may seek a contribution from the other parties owing the liability in the share of each of their liability

8
Q

Vicarious liability

A

Liability of an employer for actions of an employee provided that the employee did not act on a frolic of their own

9
Q

For joint debts, who should be sued?

A

All joint debtors

10
Q

Causation

A

The question of whether the act caused the damage

11
Q

Quantum

A

How much loss has been suffered

12
Q

The aim of any action (4)

A

Establish or seek to change a legal status; determine legal rights and duties; rectify an infringement or denial of legal rights; seek a declaration of the position between the parties with no further remedy

13
Q

Aim of damages in tort

A

To put the claimant in the position they would have been in had it not been for the tort

14
Q

Damages in tort must be-

A

A reasonably foreseeable consequence of the tort

15
Q

Aim of damages in contract

A

To put the claimant in the position they would have been in but for the breach

16
Q

How to assess the principle on damages in tort

A

Either to restore the claimant to the position they would have been in had the contract been correctly performed or to compensate the claimant for expenditure rendered futile by the breach

17
Q

In order to obtain damages in contract the claimant must be able to show that-

A

The losses suffered were in the reasonable contemplation of the parties at the time the contract was made as being the probable result of any breach

18
Q

In both contract and tort cases, the claimant has a duty to do what to their loss?

A

Mitigate

19
Q

Who is the burden of proof on to show that the claimant has not mitigated their losses?

A

Defendant

20
Q

Before proceedings are issued, a claimant will only be entitled to interest if?

A

There’s a specific contractual clause providing for it or if the Late Payment of Commercial Debts (Interest) Act 1998 applies at which the rate is 8% above base rate

21
Q

Between start and end of the proceedings, which statutes can be relied on to claim interest?

A

Senior Courts Act 1981 (if HC), County Courts Act 1984 (if CC) or the Late Payment of Commercial Debts (Interest) Act 1998

22
Q

Rule 16.4 CPR

A

The claimant must make clear in the PofC whether they seek interest on any amounts as well as state the basis

23
Q

When are nominal damages awarded?

A

Where there has been an infringement of a legal right but where there have been no losses arising out of the actual infringement

24
Q

Aggravated damages

A

Additional damages that the court may award as compensation for the defendant’s objectionable behaviour

25
Q

When is an aggravated damages award most often made?

A

When the defendant’s behaviour was designed to injure the claimant’s pride or dignity

26
Q

Exemplary damages

A

Damages which go beyond compensating for actual loss and are awarded to show the court’s disapproval of defendant’s behaviour

27
Q

When will an order for exemplary damages be made? (3)

A

Bad behaviour by government servants; where the defendant’s conduct was designed to make a profit in excess of the compensatory damages payable; where statute expressly provides

28
Q

Other remedies (7)

A

Delivery up of goods; injunctions; specific performance; rectification; accounts; declaration; restitution

29
Q

The claim for restitution is for-

A

Repayment of benefit received by the defendant, not losses suffered by the claimant