W0 A&Q (Pre-Action Consideration)

Question 1

What is the overriding objective?

Answer 1

‘To enable the Courts to deal with cases ‘justly and at a proportionate Cost’

Question 2

What are the elements for a cause of auction?

Answer 2

1- Duty
2- Breach
3- Causation
4- Loss

Question 3

What is the civil standard of proof?

Answer 3

The balance of probabilities.

Question 4

What does a balance of probabilities mean ?

Answer 4

A fact will be established is more likely then not to have happened.

Question 5

What are the costs that a party might incur in pursuing litigation?

Answer 5

• Solicitor fees and Disbursements

Question 6

What is Disbursements?

Answer 6

Fees other than the solicitors fees.

Question 7

What fees are included in Disbursements?

Answer 7

-Court fees
-Expert fees
-Council fees
- Other Costs

Question 8

What are 2 important considerations for costs to consider?

Answer 8

1- The costs that a party might incur in pursing litigation

2- Why a party is at risk of being ordered to pay an opponent’s cost (Inter partes)

Question 9

What is the general rule for cost?

Answer 9

The unsuccessful party will be ordered to pay the costs of the successful party.

Question 9

Does the court have discretion to parties cost?

Answer 9

Court’s power allow a broad discretion to determine:

a) whether one party should pay the other party’s costs

b) if so, how much should be paid

(Court can make a different order from the general rule)

Question 9

What factors would the court consider when applying their discretion for the parties cost?

Answer 9

• the conduct of the parties
  and
• whether a party has succeeded on all of its case or only part

Question 10

what is the general rule on recovery?

Answer 10

the courts will only allow a reasonable and proportionate sum to be recovered.

(even if successful, in the vast majority of cases it will only recover a proportion of its cost from the opponent, not all of them)

Question 11

What are other considerations in the case analysis?

Answer 11

• parties
• limitation

Question 12

Where the burden of proof generally fall on?

Answer 12

Every fact in dispute must be proved.

Thus,

The burden of proving any issue of fact or law generally falls on the party who asserts it.

Example:

C must prove:
- Duty, breach, causation, and loss for negligence.
-Duty (existence and terms of contract), breach, causation, and loss for contract .

D must prove:

• Contributory negligence (if any)
  -Why the D’s version of the facts is correct (and that, therefore, the C’s version must be wrong).

Question 13

Why do proceedings need to commence within the relevant limitation period?

Answer 13

If proceedings are not commenced within the relevant period, C will be barred from recovering damages and on this basis, D will have a full defence.

Question 14

What is the limitation period for Claims under the Fatal Accidents Act 1976?

Answer 14

3 years from:
-date of death or
-dependents date of knowledge.

*Claim cannot be brought if the person injured could no longer bring a claim…

Question 15

What is the definition of date of knowledge for Fatal Accidents and Personal Injury claims?

Answer 15

Means Knowing:

a) That the injury was significant
b) that it was attributable (at least in part) to the alleged wrongdoing
c) The identity of D
d) if it is alleged that the wrongdoing was by someone other than D, the identity of that person and the additional facts supporting brining the claim against D

Question 16

What would the courts consider for extending the limitation period for Fatal Accidents and Personal Injury?

Answer 16

If that would be equitable, balancing the prejudice to C caused by the limitation period with any prejudice to D which allowing the claim would cause.

The court will look at:

-The conduct of the parties;
-The reason for the delay; and
- The effect of such a late claim on the evidence.

Question 17

What is the limitation period for Personal Injury Claims?

Answer 17

3 years of the latest of:

a) the date when the cause of action accrued; or

b) the date of knowledge of the person injured

Question 18

What is the limitation period for contribution claims? and How is it calculated by?

Answer 18

2 years from the date on which the right to recover arose. This is Calculated by:
a) The date when the judgement was given imposing liability on the first party; or

b) in cases where the first party agreed to make the payment (rather than having a judgement imposed on them), the date on which the amount to be paid was first agreed.

Question 19

What are Latent damages for negligence?

Answer 19

Negligence actions where facts relevant to the cause of action are not known at the date of accrual.

Question 20

What is the limitation period for negligence claims (other than claims for personal injury)? and How is it calculated by?

Answer 20

S.14 A
a) 6 years from when the cause of action accrued or
b) 3 years from when the requisite:
i) knowledge and
ii) right to bring a claim

S.14 B
*But this is subject to a long-stop limitation date of 15 years from the date of the latest negligent act/ omission which caused all or part of the damage.

Question 21

What is the definition of date of knowledge for latent damages for negligence claim?

Answer 21

C needs to know ‘the material facts about the damage in respect of which damages are claimed (knowledge of the foundation is damaged)

*knowledge of fact = permits the limitation period to start.

Question 22

What is the limitation period for judgements claim? and How is it calculated by?

Answer 22

An action to enforce a judgement cannot be brought after 6 years from when the judgment became enforceable, nor can interest be recovered after that period.

Question 23

What is the limitation period for Tort and Contractual claims?

Answer 23

6 years after the date on which the cause of the action accrued.

Question 24

What would happen if C is under a disability at the time that the cause of action accrued?

Answer 24

The limitation period starts to run from when the disability ends, and is:

a) 2 years in relation to contribution claims;

b) 3 years in relation to personal in relation to personal injury or fatal accident claims and

c) 6 years in most other case.

Question 25

What constitutes a person under a disability?

Answer 25

• whilst they are a minor (under 18)
  or
• lacks mental capacity to conduct the proceedings (within the meaning of the mental capacity act 2005)

Question 26

What is the effect on a claim based on fraud, concealment, mistake?

Answer 26

The limitation does not start to run until C discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).