tort, limitation and preaction and lit v arb Flashcards
what is tort and function
Tort = an infringement of a legal right (or breach of a legal duty), giving rise to a claim in the civil courts i.e. a civil wrong, meaning a breach of legal duty
Harms protected by law of tort including interference with bodily integrity; damage to person’s reputation; unreasonable interference with use and enjoyment of land
distinction between harms and actual torts, which include intentional torts (assault and battery; defamation; fraud); negligent torts (PI; product liability; premises liability; professional malpractice)
Main functions are:
deterrence
compensation
justice
vindication of rights
criminal v tort
Criminal brought by public officials, tort by victim
A crime is an offence, an act outlawed by the state and it is prosecuted by the CPS. A tort is a wrong for which an injured individual may claim.
Assault/battery in tort do not require physical harm. In criminal , they require ABH etc.
also some torts don’t require intention e.g. negligence, whereas criminal requires mens rea
contract v tort
Both seek to compensate claimant for wrongdoing by D
But in contract, obligations are fixed by terms of contract. In tort, liability depends on largely judge-made rules that dictate whether D’s wrongdoing is a tort
There is a wider scope of liability in tort, obligations are imposed by law rather than agreed contract
If your bike is defective, in contract you will sue retailer as you made contract with them (unless you received item as a gift, you didn’t enter into contract and gift-giver could not claim compensation for injuries. Would need to be in tort), in tort you will sue manufacturer
Suing through contract is easier option and may lead to more compensation as to access tortious remedies, C must show that the loss/injury is a type of harm recognised by the law of tort / persuade the courts to extend the scope of tort (i.e. risk that harm suffered falls outside protection of tort law)
also need to establish all the steps of tort e.g. duty of care unless they are “actionable pe se” e.g. battery does not require harm / breach of ECHR doesn’t either
also limited by HR concerns - cannot act against convention rights (s6 ECHR); tort of defamation requires balance of Art 10 freedom of speech and Art 8 respect for private and family life
structure for analysing tort
- Identify all the possible claimants and defendants
Who has been harmed?
Who is or are the appropriate defendants? - Identify the nature of the loss for each potential claimant.
What is the nature of the harm? E.g. injury/vehicle damage - Consider which torts (there may be more than one) may be relevant.
What is the relevant tort? - Explain the elements of the relevant tort(s).
What elements of the tort must the claimant prove? - Apply the law for the relevant tort(s) to the facts of the case, discussing any particular issues that may arise.
I.e. facts that may make decision more difficult - Identify any arguable defences and discuss these in relation to the facts of the case.
- Reach a conclusion if possible, on whether the defendants will be liable.
- Consider what the possible remedies are if the claimant is successful
what is negligence
Tort of negligence = a breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.
qs for negligence
Did the defendant owe the claimant a duty of care?
established v novel duty situations
neighbour principle in Donoghue v Stevenson via three part test in Caparo: 1) reasonable foresight of harm; 2) sufficient proximity; 3) fair, just and reasonable to impose a duty
limited in certain situations e.g. harm caused by public body / omissions / pure economic loss / pure psychiatric harm
in defective product situation (e.g. Donoghue v Stevenson - remnants of dead snail in ginger beer), must show:
D is manufacturer - can include any person who works in some way on product before it reached customer
item causing damage is product
C is consumer - includes not only the ultimate user of the article, but also anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant’s negligence (i.e. ‘neighbours’) e.g. in Stennet, liable to pedestrian who was injured when wheel came off defective vehicle
product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination - if intermediate examination is possible, manufacturer will not owe duty e.g. Kubach - chemical had warning it should be tested before
Was the defendant in breach of that duty?
two part test: 1) what was the standard of care? 2) did the D’s behaviour fall below the required standard?
special standards may be relevant in certain professional situations
lower threshold for breach if D is child / disabled
2 part test for determining standard of care: 1) how much risk did D’s activity involve? 2) how should D have responded to that risk?
Did the defendant’s breach of duty cause damage/loss to the claimant?
need direct link between breach and harm
If the only loss is the defective quality of the product itself, the reduction in value of the product, or the cost of repairing the defect or of replacing of the product would not be covered by the duty of care as these are examples of pure economic loss
Are any defences available to the defendant?
defences to negligence
volenti - aware of defect but uses product anyway
contributory negligence
remedies in tort
nominal damages - if tort was actionable per se (i.e. no loss) e.g. trespass to the person
compensatory damages
aim = to put C in same position they would have been in had the tort not been committed
consideration of mitigation - C should be no worse off but no better off either
one action rule - can only bring one claim based on one set of facts
general v special damages - general cannot be calculated precisely and so up to court e.g. pain/suffering, special can be calculated e.g. financial loss
defecitve products tort
see above: can be liable in negligence
additional cause of action under Consumer Protection Act 1987 (although can only recover damages for same loss once)
possible Ds: manufacturer; own-brander; importer; supplier if meet s2(3)
s2(1) - can sue if they establish they suffered damage caused by a defect in a product
damage = minimum £275 for property damage; unlimited for death/injury. replacing/repairing defective product is pure economic loss
defect = unsafe / need to consider various aspects of the product e.g. age / expected use
product = any goods
defences
volenti
contributory negligence
s4(1) CPA - e.g. supplied otherwise than in course of business
negligence v CPA
strict under CPA, whereas you need to establish D’s negligence for claim in negligence
no claim for damage of business property under CPA
minimum claim for damage to private property under CPA is £275
same for recovery for cost of repairing or replacing defective product
different for class of potential claimants and defendants
class of potential claimants is wider under tort of negligence e.g. repairers and installers would not come under definition of a ‘producer’ in CPA 1987
but CPA 1987 covers importers and own branders who would not come within scope of negligence
CPA v contract
sometimes contractual claim not possible e.g. where C did not buy product and does not come within the Contracts (Rights of Third Parties) Act 1999, or where the supplier has gone out of business
possible claims = breach of express / implied terms under Consumer Rights Act / Sale of Goods Act. would be able to recover pure economic loss under Haxley, but not in negligence; would not be required to prove fault on the part of the supplier (strict liability under the Acts)
tort case on remoteness
Armstead v Royal & Sun Alliance Insurance Company Ltd (2024):
Issue: Remoteness and burden of proof.
Decision: A victim can recover damages for contractual liabilities to third parties resulting from the tortfeasor’s physical damage to property
limitation for contract, tort and JR
Contract = 6 years from cause of action i.e. date on which the breach of contract occurred
limitation period can be difficult where it is breach of deed (12 year limitation period applies)
for action to enforce judgment, six years
Tort = 6 years from when cause of action arises e.g. when negligent act / omission occurred
for defamation, it is one year from publication
for PI, it is within three years of injury
when under 18, time period does not start to run until they are 18
JR = 3 months from decision
6 weeks for planning decisions
limitation under arb act
s13(1) Arbitration Act
where arbitrator is appointed by parties, arbitral proceedings are commenced when one party serves on the other party or parties notice in writing requiring them to appoint an arbitrator or agree to the appointment of an arbitrator
where arbitration is named, proceedings are commenced when one party serves on the other party or parties notice in writing
where arbitrator is appointed by someone else, commenced when one party gives notice in writing to that person requesting them to make appointment in respect of that matter
S12 AA – High Court can grant extension of time for referring a dispute to arbitration
- Parties must first have used any provisions of AA before applying to the court
- Grounds for granting an extension are in s12(3)
1. ‘the circumstances are such as were outside the reasonable contemplation of the parties when they agreed [the time limit]’.
§ Harbour & General Works Ltd – C had narrowly missed the time limit because of an administrative oversight. extension should only be considered if the parties would have contemplated that the time bar might not apply (had they known of the circumstances at the time of the agreement)
2. ‘the conduct of one party makes it unjust to hold the other party to the strict terms’
limitation and extensions of time
outside of PI and defamation, no discretion to extend running of time for limitation purposes
only effective way is by agreement between the parties e.g. D agreeing not to plead a limitation defence
alternative is to enter into standstill agreement where D agrees not to rely on expiry of limitation period until notice is given to restart the claim i.e. freezing running of time at date of agreement
does Limitation act apply to arb
LA 1980 applies to arbitration
Commencement of Arbitration: The limitation period typically starts from the date the cause of action arises. Arbitration must be commenced within the applicable limitation period to avoid the claim being time-barred
limitation case law - contract natural gas
Contract Natural Gas Ltd (in liquidation) v ZOG Energy Ltd (in liquidation) [2025] EWHC 86 (Ch) concerned two consolidated proof of debt adjudication appeals. In determining those appeals, the court considered, among other things, the effect of a post-Enterprise Act 2002 (EA 2002) administration on limitation. After reviewing existing authority and statute, the court confirmed that, among other things, time does not stop running for limitation purposes when a company enters a post-EA 2002 administration.
limitation case law - office properties
The case Office Properties PL Ltd (in liquidation) and others v Adcamp LLP and another [2025] EWHC 170 (Ch) arose from a claim with a significant error: it was brought against the wrong party. Furthermore, that error was not discovered until after limitation had expired. The practical significance of this case is that the situation may be remediable by substituting the correct party for the original wrong party under the Limitation Act 1980 (LA 1980).
things to be aware of for limitation periods
Need to be aware of limitation periods running out
when does time start to run?
usually when cause of action accrues
but in cases of PI/latent damage/fraud or mistake/concealing material fact, it is when C discovers or could discover the facts
Matthew and others v Sedman - where cause of action accrues part way through day, day is excluded for purposes of calculating limitation period
how long is the limitation period?
what happens when time expired?
usually time-barred but it will bar the remedy but not extinguish the right
advising claimants on limitation
possible settlement discussions should not deter from issuing proceedings in time
advising defendants on limitation
plead limitation if you want to rely on it - once raised, burden switches to claimant to prove time has not expired
limitation period may expire earlier in contract as there may be breach of contract without substantial loss, but in tort, time will not start until substantial loss suffered
may be forced to sue in tort rather than contract
which can impact damages as they are often less favourable than damages in contract
pre action steps
accept instructions - send out client care letter and organise team
set out initial advice - funding options/time and commitment/document creation etc
check relevant agreements for jurisdiction
check limitation period
comply with pre-action protocol - attempt settlement; exchange sufficient info
do we need app for interim remedy? security for costs?
consider ADR (see section below)
preaction protocols
objectives
pre-action protocols aim to encourage early information exchange, avoid litigation and manage proceedings efficiently
intentions set out in PD
understand eachother’s position
make decision re how to proceed
try to settle without proceedings
consider ADR
efficient management of proceedings
reduce costs of resolving dispute
detail
from october 2023, fixed costs apply to claims between 25k and 100k creating an intermediate track
specific protocols for certain types of claim e.g. prof negligence
courts can impose sanctions for failing to comply including penalties / adverse costs order
key = send letter of claim
need to state facts of case; legal bassi for claim
D should acknowledge within 21 days
engage in reasonable info exchange
need to give other side sufficient info for them to understand your position and make informed decisions re settlement
all steps must be proportionate
consider ADR
see below
need permission before expert advice can be relied on
preaction disclosure
can apply for pre-action disclosure under CPR 31.16
leading case is Black v Sumitomo
requirements:
parties must be likely parties to subsequent proceedings
documents must fall within scope of standard disclosure
pre-action disclosure must be desirable to dispose fairly of anticipated proceedings, assist in resolving the dispute without proceedings or save costs
court has discretion to grant or refuse the order
applications are made under CPR 23 using Form N244
litigation funding
litigation funding allows clients to pursue claims without bearing the financial risk - third party funder covers legal costs in exchange for a share of damages awarded
benefits
focus on growth - clients can use cash for business growth instead of legal fees
turn legal claims into assets
reduce risk
DLA can assess claim’s merits and recommend suitable funders
need claim value of 10mill, 60% prospect of success and D must be solvent
structure of costs
crim - all start in magistrates court, then sent to Crown if serious, then CoA criminal division and then supreme court
civil - all start in county court, appeal sent to High Court and then CoA
different divisions in High Court:
Family;
Chancery (company law, tax, incl Patents, Business and Property Courts, Companies and Bankruptcy courts);
BPCs:
The Commercial Court (King’s Bench Division).
The Admiralty Court (King’s Bench Division).
The Circuit Commercial Court (formerly the Mercantile Court) (King’s Bench Division).
The Technology & Construction Court (King’s Bench Division).
The Financial List (King’s Bench Division / Chancery Division).
The Business List (Chancery Division). This includes all the cases that were previously issued in the Chancery Division, including real property cases, pensions cases, financial services cases (outside the Financial List), and regulatory cases.
The Insolvency and Companies List (with the further option of the Insolvency or Companies sub-lists) (Chancery Division).
The Intellectual Property List (Chancery Division). This includes the Patents Court and the Intellectual Property & Enterprise Court.
The Property, Trusts and Probate List (Chancery Division).
The Competition List (Chancery Division).
The Revenue List (Chancery Division).
KBD (includes admiralty court) - common law claims incl contract and tort e.g. negligence. Includes the TCC (e.g. arbitration, adjudication, prof neg, building), admin and commercial (e.g. banking disputes) courts
PD29 2.2 suggests that a claim with a value of less than £100,000 will generally be transferred to the County Court unless; (a) it is required by an enactment to be tried in the High Court, or Page 2 (b) it falls within a specialist list, or (c) it falls within one of the categories specified in the list at PD29 2.6 .
