Civil Litigation – Consolidation
Causes of action in a civil litigation case
All causes of action in a civil litigation case (on this course) will be based on:
Duty Breach Causation + Loss Defences
D owed C a duty, whether tortious (duty of care) and/or contractual D breached that duty D caused C actionable loss D has a defence
(based on an express written or oral term in a retainer/ implied
term by statute)
!/!: and/ or as a D may owed a concurrent duty in both tort “The breach is [BREACH].” “But for D’s actions, C would not have Contributory negligence provided that D can
and contract (Henderson v Merrett). suffered loss.” prove that C was at fault and C’s negligence
contributed to the loss suffered. this will
“The breach is assessed by
reduce damages to ‘such extent as the court
One of the deciding factors is: the enforcement period (tort: 6 reference to the standard of…”. !/!:
thinks just and equitable having regard to
years from the date the actionable loss suffered vs. contract = o In contract = damages will place C in
C’s share of the R for the damage’.
6 years from date cause of action accrues) + the remedies the position C would have been in
!/!: in tort, the standard of the
available (contract also has specific performance) had the contract been properly
objective reasonable person
performed, subject to the rules of
may be raised, esp. if the D has
remoteness and mitigation.
e.g., for professional negligence claims, either a special skill, i.e., a specialist
Test: loss must flow
o (i) there is a duty in tort to exercise reasonable care and skill commercial property solicitor
naturally from the breach
in the performance of his duties; will be held to the standard of a
(direct) or be in the
reasonably competent solicitor
reasonable
specialising in commercial
o (ii) there is a contractual duty to exercise reasonable care contemplation of the
property
and skill implied into the retainer under s. 13 SGSA parties (indirect)
o (iii) there is an express duty to exercise reasonable care and o In tort, damages will place C in
skill in the contract, i.e., retainer, sale. position would have been in if tort
not committed, subject to the rules
of remoteness and mitigation.
Test: direct and
Implied duties in SG contracts: 1979 SGA consequential loss
S.14(2) SGA: ‘the goods supplier under the contract are of provided loss not too
satisfactory quality’. Exceptions: remote (‘reasonably
o Defects drawn to the buyer’s attention before the foreseeable’)
contract is made
o Defects that an examination ought to reveal if the
buyer examines the goods before the contract is
made
o (sale by sample) Defects which would have been
visible on a reasonable examination of the sample
S. 14(3) SGA: the goods are reasonably fit for the particular
purpose for which they are being bought
S. 13 SGA: the goods will correspond to the description
provided.
As these are classified as ‘conditions’ = breach = rejection.
Implied duties into SS contracts: SGSA 1982
S. 13 SGSA: the supplier will carry out the service with
reasonable care and skill.
As this is an innominate term = breach = remedy depends on
consequence of the breach.
If buyer is aware of a defect but affirms the contract = loses the
right to reject.
Preliminary remarks
Overriding objective = CPR 1 (p. 1) ‘To deal with cases justly and at a proportionate cost which involves placing the parties on an equal footing’
Court must consider the HRA 1998, notably art. 6 (right to a fair and public hearing within a reasonable time by an independent and impartial tribunal)
Most likely to raise court’s management powers, hearsay rules, availability of legal aid, sources of evidence
Pre action =
Litigation is a measure of last resort so parties must take pre-action steps before a claim is issued set out in pre-action protocols, i.e., best practice
Certain actions have their own pre-action protocols.
o Pre-action protocol for professional negligence: p. 507.
If letter of If not,
D sends a letter of
D acknowledges D acknowledges response denies negotiations
Response or
C issues a receipt of claim within 21 D investigates for entirely of claim, should
C issues a letter of Settlement within
preliminary notice preliminary notice days of receipt by up to three Commences court commence
claim 3 months of
to D within 21 days of way of a Letter of months proceedings seeking to resolve
receipt of letter of
receipt Acknowledgment giving D 14 days the matter within
acknowledgment
written notice 6 months
All actions are subject to the Practice Direction on Pre-Action Conduct (PDPACP)
Failure to comply will impact costs + interest: PD PACP 13 and 16 but the court is more interested in substantial non-compliance vs. minor shortcomings
Jurisdiction
Issue = determining which court in which to bring a claim
“[CLAIMANT’S] claim is for [CAUSE OF ACTION].”
“For cases other than PI, you cannot generally commence proceedings in the HC unless you expect to recover > 100k: 7A PD 2.1. If the case is > 100k, the parties will have the choice as to whether they start their
case in the HC or CC as they have concurrent jurisdiction.”
[APPLY, e.g., ‘the claim is for [AMOUNT]. As it is [below OR above] the 100k threshold, it [should OR should not] be commenced in the High Court’ or it can be commenced in the County Court or High Court as
they have concurrent jurisdiction.
“Choosing between the two should depend on the financial value of the claim (how much C expects to recover disregarding interest or costs or any other counterclaim), the complexity of the facts, legal issues,
remedies or procedures and the public interest in the outcome (7A PD 2.4).”
[APPLY, e.g., ‘the claim is simple and unlikely to affect other parties’
(if High Court is chosen, must then choose division) “Then, one must decide which division of the Hight Court, the claim should be brought in.
As per s. 61 SCA 1981, while the Queens Bench Division has jurisdiction over contract and tort claims, the Chancery Division has jurisdiction over land, mortgage, trusts, administration of estates, bankruptcy,
partnerships, probate. Today, there is a blurred distinction between the two and as such cases can be heard in either and will depend on speed of cases and expertise of judges available.”
[APPLY].
!/!: if proceedings are commenced in the wrong court, the claim may be transferred to a court/ division within the same court other than the one it was issued in (CPR 30.2 – p. 327).
Transfer criteria: CPR 30.3(2)
o Financial value of claim
o Whether it would be more convenient or fair for hearings to be held in some other court
o Availability of judge specialising in the type of claim in question
o Facts, legal issues, remedies, or procedures are simple or complex
o Importance of outcome of claim to the public in general
o Etc
Transfer must be notified to all parties: CPR 30.4(1).
4
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller GCdoestheLPCatBPP. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $6.73. You're not tied to anything after your purchase.
