Unit 1 DR - Key Pre-Action Steps

Question 1

Tort - Negligence: DoC

What are the elements of a negligence claim?

Answer 1

• Did the D owe the C a DoC?
• Did the D breach that DoC?
• Did the breach cause injury to the C?

Question 2

Tort - Negligence: DoC

What is the test laid out in Caparo to establish novel duty situations?

Answer 2

• Reasonable foresight of harm to the C.
• Sufficient proximity of relationship between the D and C.
• Fair, just, and reasonable to impose a duty.

Question 3

Tort - Negligence: DoC

Which kind of harm needs to be caused for a negligence claim?

Answer 3

Physical harm/injury (whether to person or property) - no pure psych/econ harm.

Question 4

Tort - Negligence: DoC

When is there a DOC owed for omissions?

Answer 4

• Duty not to make the situation worse.
  • Duty where one party has control over the other (e.g. teacher over student)
    
    • Includes duty to prevent harm to third parties (e.g. by student’s actions).

Question 5

Tort - Negligence: Breach of Duty

What is the standard of care that children are expected to demonstrate?

Answer 5

Care as can reasonably be expected of an ordinary child of the same age.

Question 5

Tort - Negligence: Breach of Duty

What is the 2 stage test the court uses to decide whether the D has breached their duty?

Answer 5

1. Assesses how the D ought, in the circumstances, to have behaved, ie what standard of care the D should have exercised.
2. Decides whether the D’s conduct fell below the required standard.

Question 6

Tort - Negligence: Breach of Duty

What is a litigation friend?

Answer 6

Child under 18 cannot be sued/sue unless they have an adult to represent them.

Question 7

Tort - Negligence: Breach of Duty

What does the court need to weigh up when assessing whether or not a D has fallen below a reasonable standard of care?

Answer 7

• The risk created by the D’s activities; and
• The precautions which the D ought to reasonably have taken in response to that risk.

Question 8

Tort - Negligence: Breach of Duty

How is the magnitude of risk created by the D’s activities measured?

Answer 8

• How likely was it that the D’s actions could cause an injury?
• If an injury was caused, how serious was it likely to be?

Question 9

Tort - Negligence: Breach of Duty

Res Ipsa Loquitur

Answer 9

In small number of cases, the circumstances in which the damage occurred will be such that a court may be prepared to drawn an inference of negligence against the D without hearing detailed evidence, e.g. if there are no witnesses.

Question 10

Tort - Negligence: Breach of Duty

What are the 3 conditions for the application of the maxim ‘res ipsa loquitur’?

Answer 10

• The thing causing the damage must be under the control of the D or someone for whom the D is responsible.
• The accident must be such as would not normally happen without negligence.
• The cause of the accident is unknown to the C.

Question 11

Tort - Negligence: Breach of Duty

What is the effect of s11 of the Civil Defence Act 1968?

Answer 11

A D who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence.

Question 12

DR - Different Options for Dispute Resolution

What is the potential consequence for failure to respond to a reasonable proposal to attempt settlement by ADR or refusal to participate in ADR?

Answer 12

Cost sanctions, e.g. payment of additional costs to opponent.

Question 13

DR - Different Options for Dispute Resolution

Any party not engaging in ADR proposed by another must…

Answer 13

serve a witness statement giving reasons within 21 says of that proposal.

Question 14

DR - Different Options for Dispute Resolution

Can the court order parties to engage in ADR?

Answer 14

Yes, the court now has the power to order parties to engage in ADR.

Question 15

DR - Different Options for Dispute Resolution

What are the advantages and disadvantages of mediation?

Answer 15

• Advantages:
  ◦ Privacy
  ◦ Cost and speed
  ◦ flexibility
  ◦ Preserving business relationship
  ◦ Commercial reality
  ◦ Ability to withdraw
• Disadvantages:
  ◦ Disclosure
  ◦ Privacy
  ◦ Ability to withdraw

Question 16

DR - Different Options for Dispute Resolution

Is mediation automatically binding?

Answer 16

No, the agreement cannot be directly enforced as if a court judgement.

But the terms will present a binding contract, so if one the parties defaults, they can be sued for their breach.

Question 17

DR - Different Options for Dispute Resolution

Is arbitration automatically binding?

Answer 17

Yes.

Question 18

DR - Different Options for Dispute Resolution

What are the advantages and disadvantages of arbitration?

Answer 18

• Advantages:
  ◦ Likely to be quicker than going to court and may be cheaper
  ◦ Less formal procedures
  ◦ Decision made by impartial third party
  ◦ Takes place in private
  ◦ Solutions reached more practical than court has power to order
  ◦ Decision binding on parties
• Disadvantages:
  ◦ Dispute may not receive depth of investigation it would in the courts
  ◦ Certain remedies, such as injunctions, unavailable

Question 19

DR - Different Options for Dispute Resolution

How can arbitration be enforced?

Answer 19

Successful party can apply to the HC for permission to enforce the arbitration award as if court judgement.

Question 20

DR - Different Options for Dispute Resolution

What is the overriding objective (CPR)?

Answer 20

To enable the court to deal with cases justly and at proportionate cost.

Question 21

DR - Resolving a Dispute Through a Civil Claim

What does it mean for a case to be statute barred?

Answer 21

The limitation period has expired without a claim being brought.

Question 22

DR - Resolving a Dispute Through a Civil Claim

Time limits to bring a claim in contract and tort?

Answer 22

• Within 6 years from the date of the cause of action.
  
  • Contract - as soon as the breach of contract occurs.
  • Tort - when the tort is committed.

Question 23

DR - Resolving a Dispute Through a Civil Claim

Time limit for personal injury claim?

Answer 23

Within 3 years from the date of the cause of action or the date of knowledge of the person injured (whichever is later).

Question 24

DR - Resolving a Dispute Through a Civil Claim Time limit for negligence claim where damage is latent (hidden) at the date when the cause of action accrued?

Answer 24

* Within 6 years from the date of the cause of action; * 3 years from the date of knowledge of the damage, whichever is later; but * no later than 15 years after the date of the negligence act/omission.

Question 25

DR - Resolving a Dispute Through a Civil Claim Can limitation periods be shortened by contract?

Answer 25

Yes, the claim should be brought within the contractually specified period.

Question 26

DR - Resolving a Dispute Through a Civil Claim When does the limitation period start for minors and protected persons (those who do not have mental capacity to make decisions for themselves)? Why?

Answer 26

The 3 year limitation period does not start to run until they cease to be under a disability or turn 18. Because those under a disability cannot be placed with knowledge.

Question 27

DR - Resolving a Dispute Through a Civil Claim What are the main exceptions under which the court may use discretion to disapply the limitation period and allow a statute-barred claim to continue even with the D’s defence of the claim being outside the time limit?

Answer 27

Personal injury and death - the court will consider the potential prejudice to the C by prevention, and the D by allowance.

Question 28

DR - Resolving a Dispute Through a Civil Claim Who needs a litigation friend? What are the requirements? Can parents/guardians act as LF’s?

Answer 28

* Children and protected parties * Will usually be parent/guardian for children * Person may act as LF if they are able to fairly and competently conduct proceedings on behalf of the party and have no adverse interest in acting.

Question 29

DR - Resolving a Dispute Through a Civil Claim Specified vs Unspecified Claims

Answer 29

Specified - for a fixed amount of money, where all figures are crystallised and certain when the cause of action arises Unspecified - if the court will have to conduct an investigation to determine the amount payable, even if the C puts forward figures for amount claimed

Question 30

DR - Resolving a Dispute Through a Civil Claim How is remoteness proved for contractual claims?

Answer 30

An aggrieved party can only recover losses which were in the parties’ reasonable contemplation at the time the contract was formed. C will need to demonstrate that the losses were in their own and D’s reasonable contemplation at the time the contract was formed.

Question 31

DR - Resolving a Dispute Through a Civil Claim Difference between the aim in negligence and contract law?

Answer 31

* Negligence - to put the C in the position they would have been in had the negligent act not occurred. * Contract - to put the C in the position as if the contract had been properly performed. * E.g. the difference between the original cost and the cost of repair, would not be able to recoup the cost of original contract.

Question 32

DR - Resolving a Dispute Through a Civil Claim What happens if parties proceed to litigation without complying with the PDPAC? What if the proceedings are started to comply with the limitation period before the parties have followed with PDPAC?

Answer 32

The parties may be sanctioned. The parties should apply to the court for a stay of the proceedings to allow them to comply.

Question 33

DR - Resolving a Dispute Through a Civil Claim What is the time limit for D to provide a letter of response after the C has sent them a letter of claim? (PDPAC)

Answer 33

The D must provide letter of response within reasonable time - 14 days in straightforward matter and 3 months in complex case. Should include confirmation of whether all/part of the claim is accepted, and if not the reasons why, with details of any counterclaim.

Question 34

DR - Resolving a Dispute Through a Civil Claim To whom does the PPDC apply?

Answer 34

Debt claims are covered by the Pre-Action Protocol for Debt Claims. Applies to any business that brings a claim against a debtor who is an individual or sole trader. DOES NOT apply to B2B debts.

Question 35

DR - Resolving a Dispute Through a Civil Claim What is the time limit for a letter of response PPDC?

Answer 35

30 days.

Question 36

DR - Resolving a Dispute Through a Civil Claim Outline the pre-action protocol for professional negligence.

Answer 36

1. Party encouraged to notify the professional in writing of any intended claim at an earlier stage. 2. The professional should be instructed to inform their insurers immediately and acknowledge the notice in writing within 21 days of receipt. 3. The C should write a letter of claim, giving full details of the issues and attaching key documents. The professional must acknowledge this in writing within 21 days of receipt. 3. The D then has 3 months to investigate and respond in a letter of response. 4. If the letter of response denies the claim in its entirety and there is no letter of settlement, it is open to the C to start proceedings. Otherwise, the professional and claimant should negotiate with the aim of resolving the claim within 6 months of the date of the letter of ackowledgment.

Question 37

DR - Resolving a Dispute Through a Civil Claim What happens when there is no governing law clause in a contract for sale of goods/services?

Answer 37

Contract for sale of goods - the law of the country where the seller has its habitual residence will apply. Contract for services - the law of the country where the service provider has its habitual residence will apply.

Question 38

What happens when there is no governing law clause in a product liability case (tort)?

Answer 38

* The applicable law will be that of the country where the injured party habitually resides, providing the product was marketed in that country. * Or, the law of the country in which the product was acquired, provided the product was marketed in that country. * Or, the law of the country in which the damage occurred, provided the product was marketed in that country.