BPP University College Of Professional Studies Limited (BPP)
Unknown
LPC
All documents for this subject (31)
Seller
Follow
JackLPC
Reviews received
Content preview
SGS 1: Civil: Case analysis- duty, who pays for litigation, pre-action considerations and legal
aid and limitation periods, court choice and track choice
Case Analysis
1. Establish the 1. Who should the client be suing?
Duty - Are there any restrictions in the retainer or contract?
2. Is there a duty in contract?
- The defendant must owe a duty of care (Donoghue v Stevenson)
- Implied terms in s.13 SGSA 1982 to provide service with reasonable care and skill
- Express terms in the contract?
3. Is there a duty in tort?
- Does Caparo v Dickman apply? This applies when somebody gives advice as they should provide
it with reasonable skill and care.
4. Any other duties?
- Try as many ways to sue as possible.
- Check the limitation periods so you can choose the one which fits best.
o Tort- 6 years from date they suffered financial loss (s.2 LA 1980)
o Contract- 6 years from date of breach of contract (s.5 LA 1980)
- Each duty could have difference damages and the defences could be different in each also.
2. Has a duty 1. What is the standard of care expected in this case?
been - Reasonably competent XXX. Use the exact experience and specialism of the breacher.
breached? - Apply the higher standard if they are a specialist in a certain area and hold themselves out to
be.
2. Is the issue likely to be a breach?
- Consider the Bolam test, what would other people in the same setting have done?
- Is the error an obvious error or esoteric point? Should the advice have been qualified?
3. When does the limitation period expire for the breaches in contract and tort?
- 6 years from cause of action for both.
- Tort begins when the loss occurred
- Contract begins when the breach occurred
3. Has the 1. Did the client rely on the negligence?
breach - The client must have relied on the negligence.
caused loss? - Need evidence to support this.
2. What’s the general position for damages in contract?
- To be put in the position you would have been had the contract been properly performed.
3. What’s the general position for damages in tort?
- Put them in the position they would have been had the tort not been committed
- “But for the negligent advice”
4. What would you seek to claim?
- Consider what the loss is
- Also consider if the client did anything to mitigate the loss or otherwise
4. IF ACTING How can a defendant seek to limit liability?
FOR THE - Can say they should only pay the difference in price
DEFENDANT:
Advantages of pursuing a claim Disadvantages of pursuing a claim
Get money back especially if there’s a lot of money at stake You could lose, there is always a risk
Defendant may have professional indemnity insurance to Time consuming for the client, litigation can take a while
pay Costly, litigation can be expensive
Likely win if you have a strong case but never 100% sure May not recover all money lost
Likely win with strong evidence but never 100% sure If you lose, you may have to pay for the other side’s costs
Publicity- a company can maintain its reputation whilst the
defendant will not want to tarnish their reputation
1
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 JackLPC. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $4.60. You're not tied to anything after your purchase.
