Disputes - Errors

What is the test for admissibility in civil proceedings?

Is the evidence relevant to an issue in proceedings?

What is the test for an interim payment being made to the Claimant?

The Court must be satisfied that if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant

What are the potential consequences for an interim payment?

If the payment is unsuccessful at trial, they may have to repay the interim payment

What should the first step always be in a dispute?

Issue a Letter of Claim to the other side in accordance with the Practice Direction on Pre-Action Conduct and Protocols

What must you consider when advising on a breach of contract?

1. Has a contract been made/ formed?

2. What are the express terms?

3. What are the implied terms?

4. What is the burden of proof for the breach? Who is it on?

5. What remedies could be available?

6. Are there any exclusion or limitation issues?

7. Is there a risk of a counter claim?

8. What is the financial viability of the other side?

What is the contract stance where there is no written contract?

The contract will be formed of the agreed oral express terms and implied terms

Provide a non-exhaustive list of factors to determine whether goods are of a satisfactory quality

1. Fitness for purpose

2. Appearance and finish

3. Freedom from minor defects

4. Safety

5. Durability

What is a reasonable assumption where claiming on a contract which is part paid?

The other side will counterclaim for the remaining monies

In what circumstances can an interim payment be made to the claimant?

1. Where the defendant has accepted some liability for payment

2. The claimant has obtained judgement for a sum

3. The Court is satisfied that if the claim went to trial, the claimant would win and obtain judgment for a substantial amount

What subsections should you include in the Particulars of Claim?

1. The Facts

2. Particulars of Negligence/ Breach

3. Particulars of Injuries/ Effects

4. Particulars of Loss

5. What does the claimant claim?

What should you always include for what the claimant claims in the Particulars of Claim?

1. Damages/ Order

2. Interest pursuant to s. 35A of the Senior Courts Act 1981

3. Costs

What goes in the top left of the particulars of claim?

1. Which Court?

2. Which division?

3. Where?

How do you introduce a witness’ evidence in the Particulars of Claim?

The Defendant was observed…

What should you make sure to refer to in the Particulars (not structure)?

Any additional documents such as Medical Reports or Schedules of Loss

How should the Claimant claim interest in the Particulars of Loss?

The claimant claims interest at such rate and for such period as the Court shall deem fit, pursuant to s. 35A of the Senior Courts Act 1981

What is the test for vicarious liability?

1. Is there a relationship akin to employment?

2. Was the wrongful conduct so closely connected to their employment that it might be regarded as being done in the ordinary course of their employment?

How do you determine whether an action is done in ‘the ordinary course of employment’?

1. What is the nature of the wrongdoer’s job/ activities/ what they were authorised to do?

2. Is there a sufficient connection between that and the offence?

What are the possible advocacy tasks?

1. Interim Payment

2. Relief from sanction

3. Permission to call a witness/ rely on another party’s witness

4. Default Judgment

5. Freezing Injunction

6. Summary Judgment

7. Striking Out

8. Interim Injunction

9. Security for Costs

10. Pre-Action disclosure

What is the three stage test for an application from relief from sanction?

1. What is the seriousness or significance of the failure to comply?

2. Why did the default occur?

3. How does this find with all of the circumstances in the case (promptness, other breaches, dealing with the claim efficiently and proportionately as to costs)?

What is the usual result of failing to file a costs budget?

An automatic sanction as it is so serious

What should you consider when a party applies for an extension for a deadline?

Are they already late on the initial deadline? There what is the TOTAL delay?

What options should you suggest to a client where the other side’s evidence is weak?

1. Summary Judgment

2. Offer to engage in ADR

3. Part 36 Offer/ Calderbank Offer

What must you always remember to advise a client in the trial process?

There is always litigation risk - you can never walk into a trial with 100% certainty you will win

What is Qualified One-Way Costs Shifting (QOCS) and when does it apply?

In personal injury claims, orders for payment of costs against a low income individual will not be enforceable

What is the time limit for accepting a Part 36 offer?

21 days

What are the potential avenues for a Part 36 offer?

1. Accepted within 21 days

2. Accepted but not within 21 days

3. Not accepted but greater sum obtained at trial

4. Not accepted but lesser sum obtained at trial

What is the other consideration for Part 36 offers made in personal injury claims?

Rejecting the offer may result in losing the protection of QOCS

What if a Claimant accepts a Defendant’s part 36 offer within 21 days?

1. Settlement Sum paid

2. Entitled to costs in proceedings up to date of acceptance

What if a Claimant accepts a Defendant’s part 36 offer past the 21 deadline?

1. Settlement Sum paid

2. Entitled to costs up to expiry of 21 days

3. Pays the defendant’s costs post 21 day expiration date

What if a Claimant declines a Part 36 offer and obtains a better amount a judgment?

There is no negative outcome

What if a Claimant declines a part 36 offer but fails to obtain a larger sum at judgement?

They must pay costs from expiry of 21 days period plus interest

What is the test for whether a duty of care exists?

1. Was the risk of injury or harm to the claimant reasonably foreseeable?

2. Was there sufficient proximity between the parties?

3. Is it fair, just and reasonable, on public policy grounds, to impose a duty of care?

What are the only circumstances where a Court may impose a duty of care for an omission?

1. Duty to act positively

2. Duty not to make things worse

3. Duty to control another

What is the position on duty of care with the Police?

1. May be liable for omissions

2. Owe a duty where they assume responsibility for someone’s safety

3. May owe a duty if they prevent others from taking steps to protect someone from harm

4. Does not owe a duty for 999 calls

What is the position on duty of care with the Fire Service?

The fire service is only under a duty of care not to make the position worse or to take reasonable steps where they have created the danger

What is the position on duty of care for the Ambulance Services?

1. Owes a duty of care for 999 calls to respond in a reasonable time

2. Held to the same standards as hospitals and other healthcare providers

What circumstances will the Court consider when assessing whether a defendant has breached a duty of care?

1. What would the reasonable person have foreseen in the circumstances?

2. Does the defendant claim to have a special skill? They will be held to the standard of a reasonable person enjoying that skill

3. The magnitude of the risk

4. The seriousness of the injury which will be suffered

5. The purpose and utility of the defendant’s activity

6. The cost and practicality of overcoming any risk

7. Common practice

8. Current state of knowledge

What does the Bolam Test inform us on duty of care?

A medical professional acting in accordance with a practice accepted as proper by a responsible body of medical men

What does the Montgomery Test inform us on duty of care?

For medical procedures and discussion on treatments, doctors are under a duty of care to inform a patient of any material risks involved

What is a material risk for the purposes of the Montgomery Test?

Whether a reasonable person in the patient’s position would likely attach significance to the risk

What are the specific exceptions to the standard of care?

1. All drivers owe the same duty of care regardless of their experience

2. Junior doctors must show the same standard as a reasonably competent doctor in their department

3. When acting in an emergency, the Defendant may receive credit for acting in the heat of the moment when in hindsight they would have taken a different course of action

4. Children are held to the standard of an ordinary child of the same age

When may a claimant rely on res ipsa loquitur?

1. The defendant must have been in control of the thing which cased the damage;

2. The accident must be of such a nature that it would not have occurred, in the ordinary course of events, without negligence; and

3. There must be no other explanation for the accident

What are the tests for causation in civil cases?

1. But For Test

2. No novus actus interveniens

What are the novus actus interveniens for civil cases?

1. Conduct of the claimant is so careless or unreasonable

2. Independent act of nature causes the claimant’s damage

3. Unforeseeable act of a third party that was intentional or reckless

What is the test for foreseeability in civil cases?

Is the damage of a kind/type that the reasonable person would have foreseen it?

What is the position where there are successive or concurrent causes?

1. Successive - the factual cause may be identified by the facts or expert evidence

2. Concurrent - Cause must be a material contributory cause (more than 50%) or cause a material increase of risk (mesothelioma/ cancer cases)

What is the postion on loss of chance?

The claimant may only succeed where they can show a loss of a real/ substantial chance, not a mere speculative chance

What are the requirements for a primary victim (suffers only the risk of physical injury) only suffers a psychiatric injury?

1. The injury must have been brought on by sudden shock; and

2. Be a medically recognised psychiatric illness

What are the requirements for a secondary victim to claim for psychiatric injury?

1. Injury was suffered through seeing or hearing (with their own senses) the accident or its immediate aftermath

2. Claimant has a relationship of love and affection with the primary victim

3. There is a causal connection between witnessing that event and the illness suffered (does not need to be a sudden shock)

4. It was reasonably foreseeable that the claimant would suffer psychiatric injury

5. The claimant’s proximity to the accident or its immediate aftermath was sufficiently close in both time and space

What is the only circumstance when a claimant may recover for Pure Economic Loss?

Negligent Misstatement

What are the requirements for negligent misstatement?

1. Assumption of responsibility by the defendant

2. Giving rise to a special relationship with the claimant

3. Reasonable reliance on the statement by the claimant (highly unlikely in casual or social situations)

What are the requirements for the assumption of responsibility required for negligent misstatement?

1. Defendant knew the nature of the transaction the claimant had in contemplation;

2. Knew that the advice would be communicated to the claimant, directly or indirectly;

3. Knew that it was very likely that the claimant would rely on that advice or information;

4. The Claimant relied on the advice to their detriment

What are the main considerations for exclusion clauses?

1. They cannot exclude personal injury or death

2. They must be fair

What may employers’ be liable for to their employees?

1. Proper and safe equipment

2. Safe systems of working and supervision

3. Fit and competent staff (including training)

4. Safe work palce

What tests may be used to to determine a relationship akin to employment?

1. The Degree of Control Test

2. The Integration Test

3. The Multiple or Economic Reality Test

Will an express prohibition from an employer mean that an action is not done in the course of employment?

Not necessarily as otherwise employers could simply prohibit the tort from occurring

What are the requirements for a Public Nuisance Claim?

1. The persons affected by the nuisance constituted the public or a particular class of the public; and

2. The claimant suffered special and particular damage over and above the inconvenience suffered by the public at large

What are the requirements for a Private Nuisance claim?

1. Nuisance interferes with the legal rights of the occupier;

2. Nuisance fits into a prescribed category;

3. There is no essential requirement for physical damage (but there must be damage);

4. Can be caused by action or omission

5. Always subject to reasonableness

6. Nuisance must be a continuing interference with quiet use and enjoyment

What will the Courts consider for the reasonableness aspect of a Private Nuisance claim?

1. Duration and frequency

2. Extent of behaviour causing the nuisance

3. Would it be a nuisance to the ordinary occupier?

4. Utility of the defendant’s conduct

5. Whether the defendant’s act is malicious

Why may sue on a private nuisance claim?

1. Any person with a legal interest

2. Any person with an equitable interest

3. Anyone with actual occupation

What are the remedies for nuisance claims?

1. Injunction (where damages are insufficient and nuisance is continuing)

2. Damages

3. Abatement (self-help)

Who can be sued in a nuisance claim?

1. The creator of the nuisance

2. The occupier of the property

3. The landlord

What are defences to nuisance?

1. Prescription

2. Statutory Authority

3. Lawful Use of Land

What is Rylands v Fletcher?

1. The defendant brought onto, and accumulated on the land (likely not including fire)

2. Something constituting non-natural use of the land

3. Which is likely to do mischief

4. If it escapes

5. The damage it causes is foreseeable

What are the requirements for a Occupiers Liability for Visitors claim?

1. The occupier (may also be legal with no actual occupation) has control over the premises

2. The person came as a visitor (invitation or permission (express or implied))

3. They breach the duty of care to the visitor

4. The visitor suffered a loss (or injury) as a result

What is the duty of care owed to a visitor under Occupiers’ Liability?

Take such care as is reasonable to ensure the visitor is reasonably safe on the premises for the purpose for which they were invited or permitted to be there

What are the different standards for Occupiers Liability for Visitors?

1. Occupier must be prepared for children to be less careful than adults (but may expect a guardian to guard against risks)

2. Skilled visitors may be expected to guard against any special risks ordinarily incident to that work

3. Work done by an independent contractor on occupier’s property has its own standard

What is the standard for an independent contractor for Occupiers’ Liability for Visitors?

1. Occupier reasonably entrusted the work to the contractor

2. Occupier took reasonable steps to ensure the occupier was competent

3. Occupier took reasonable steps to ensure work was carried out to an appropriate standard

What is the duty of care owed to a trespasser under Occupiers’ Liability?

1. Occupier is aware of the danger concerned or has reasonable grounds to believe it exists; and

2. Occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of danger; and

3. The risks is one which the occupier might reasonably be expected to offer some protection against

What are the defences to Occupiers Liability for Trespassers claims?

1. Warnings (whether directly warned or reasonable steps taken to warn - no duty for obvious risks)

2. Trespasser accepted the risks

What are the different liabilities for Occupiers Liability?

1. Visitors - Personal injury and damage to property

2. Trespassers - Personal injury only

Which parties may be liable under the Consumer Protection Act for defective products which cause damage or personal injury to any person?

1. Producer/ manufacturer

2. Importer

3. ‘Own-brander’

4. Other ‘suppliers’

What are products for the purposes of the Consumer Protection Act?

1. Goods, electricity and anything which is part of another product.

2. Not buildings, services or pure information

What are the requirements for a claim under the Consumer Protection Act?

1. Liable person(s)

2. Must be a product

3. Must have a defect

4. No proof of negligence required

5. Loss/ Damage

6. Caused by the goods

7. No defences apply

8. No time barred

What is a defect for the purposes of the Consumer Protection Act?

Where the safety of the products is not as a person is generally entitled to expect (consider marketing, warnings, expected use and age of product)

What damage must be suffered for a Consumer Protection Act claim?

1. Of a physical kind (death, injury, to property but not pure economic loss)

2. To property other than the defective product itself

3. To property for private use

4. In excess of £257

What are the defences to a Consumer Protection Act claim?

1. Defect was the result of compliance with statute

2. Defendant did not supply the product

3. Defendant did not supply the product in the course of business

4. Product was not defective when first supplied

5. ‘Development Risk’ (scientific and technical knowledge at the time did not know of the risk)

6. Component part was not defective (for manufacturers of parts of products)

What is the limitation period for a Consumer Protection Act claim?

3 years from loss and 10 years from when product was supplied

What is the test for contributory negligence?

1. Claimant failed to take reasonable care of themselves; and

2. That lack of care contributed to the loss

What is the defence of illegality?

A claim may be dismissed if the claimant suffered damage from the defendant’s tort whilst engaging in a criminal activity

What is the defence of medical necessity?

1. The act is needed to avoid inevitable and irreparable evil;

2. No more should be done than is reasonably necessary; and

3. The act must not be disproportionate to the evil avoided

What is the defence of consent?

1. Claimant had full knowledge of extent and nature of risk; and

2. Expressly or impliedly freely consented to the risk

What are the remedies available to a general tort claim?

1. Damages

2. Injunctions

What are the remedies available for a personal injury claim?

1. General Damages (non-calculatable including future damages)

2. Special Damages (specific damages ie medical bills or loss of earnings)

Who may bring a claim under the Fatal Accidents Act?

1. Spouse, former spouse or at least 2 year cohabitee

2. Any parent or person treated as such

3. Any child, descendant or person treated as such

4. Any sibling, aunt, uncle of the deceased (or their issue)

What may be claimed in a Fatal Accidents Act claim?

1. Statutory bereavement award for pain and suffering (£15,120) if partner, cohabitee or parent of minor

2. Loss of income and services dependency if dependent on deceased

3. Funeral expenses

What is the limitation period for a Fatal Accidents Act claim?

3 years from date of death or knowledge of death

What are the essential elements of a contract?

1. Offer and Acceptance

2. Intention to create Legal Relations

3. Consideration

What are the other required elements of a contract?

1. Capacity

2. Consent

3. Legality

4. Form

5. Certainty of terms

What must you consider when determining an offer?

Is it an offer or invitation to treat?

What are examples of invitations to treat?

1. Displays of goods

2. Adverts (unless there is a unilateral offer)

3. Auction sales

4. Tenders

5. Requests for information

When is an offer terminated?

1. When rejected

2. When a counter-offer is received

3. After a reasonable lapse of time

4. Where there is a failure of a condition precedent

5. On death

What are the requirements for acceptance?

1. Unqualified and clear

2. Fits the terms of the offer

3. Can be oral, written or by conduct

4. Communicated to the offeror

What is the postal rule?

1. Acceptance is valid from the moment of posting, not receipt

2. Must be a reasonable method of acceptance

3. Does not apply to instantaneous forms of communication

Where is the presumption to create legal relations rebuttable?

In domestic or social agreements

What are the requirements for consideration?

1. Must be sufficient but need not be adequate

2. Past consideration is generally not good consideration

What is the exception for where a contract is enforceable against a minor?

Where the contract is beneficial for them for necessary goods and services, otherwise they are voidable at the minor’s petition

What is a ‘necessary’ good for the purposes of enforcing a contract against a minor?

Those suitable to the condition in life of the minor and to their actual requirements at the time of sale and delivery

What is the usual result where a contract involving a minor is unenforceable?

Restitution

How can mental incapacity be shown for a contract?

1. The person did not understand the nature of the contract; and

2. the other party was aware of their impairment