Breach of contract- what needs to be proved?
Contract: formation, date, parties, written or oral, consideration, mitigation
Terms relied on:
Express
implied
Breach of terms:
how were the terms breached
Consequences of the breach
what was the impact of the breach to you or the business, applies the facts to the
consequence
Damage and loss:
what financial damage or loss was suffered as a result of breach
CPR 1- OVERRIDING OBJECTIVE
Overring objective of the court to deal with cases in cost appropriate and timely
manner
Need to provide as much specific detail about what is to be proved and evidence is
needed- example the parties, the date and what was agreed etc.
Elements to Facts to prove Available Evidence to
prove evidence obtain
No issue of remoteness because DMS aware of all of the facts and requirement of
dates
, Practice Direction Pre-Action Conduct and Protocols 352-359
CASE ANALYSIS – CIVIL LITIGATION
Step 1: Record the Names of the parties;
facts of the case Events that took place
Step 2: Is there a Breach of contract
cause of action? Negligence
Negligent misstatement
Misrepresentation
Nuisance
Step 3: What are the E.g. For breach of contract you must consider:
legal and factual
elements to
establish for each Is there a contractual relationship between the parties?
cause of action? What are the terms of the contract?
Have any terms been breached? Are they express or implied terms?
Were they agreed orally, or were written terms recorded in the
documents?
Categorise the term(s) breached. Is it a condition, a warranty or an
innominate term?
Can causation be established?
What is the loss/damage?
Step 4: What What evidence do you already have to support the cause of action? What
evidence is there? evidence might the other side or a third party already have?
What evidence do you need to obtain in order to establish your client’s
case? What evidence might come to light that could weaken it?
Step 5: What are the Are there any expressed or implied terms that are relied on during the
terms that are relied contract?
on?
What remedies may Damages:
be available? In contract, to put the injured party in the position it would have been had
the contract been properly performed.
In tort, to place the claimant in the position it would have been had the tort
not been committed.
Have steps been taken to comply with any duty to mitigate?
Other remedies, such as specific performance.
Is it a viable option Who are they?
to sue the Where are they?
defendant? If a company, are they solvent?
Do they have assets?
,Conclusion: What are the client’s prospects of success? What further information is
required? What are the strengths and weaknesses of the potential case?
Should alternative dispute resolution be recommended?
Summary: breach of Contract (it’s formation – parties, date, written or oral, subject matter
contract (goods, goods and services/materials and work, services), consideration
Terms relied on (express / or implied)
Breach of those terms,
Factual consequences of the breach of those terms;
Damage and loss
, NEGLIENCE CASE ANALYSIS TABLE EXAMPLE (TB p419)
Elements to Facts to establish Available evidence
establish
Duty of Care That the clients occupy the Clients own the property and saw Mr Templar
property and Mr Templar enter the driveway in his car.
(a road user) entered onto
the driveway
Breach of duty By driving too fast and Clients who saw Mr Templar do this.
erratically, Mr Templar lost
control, left the drive and Evidence to obtain:
did not avoid crashing into
the extension. Expert evidence: an examination of the
vehicle/driveway may produce evidence which
supports the clients evidence as to the speed of
the vehicle/loss of control.
Causation That by crashing into the Clients who saw Mr Templar do this.
extension the clients
thereby suffered loss.
Loss and damage Damage to garden, the Clients
extension, some
furnishings and fittings. Evidence to obtain:
An expert will need to produce a report detailing
the damage to the extension and the cost of
repair.
Contract: formation, date, parties, written or oral, consideration, mitigation
Terms relied on:
Express
implied
Breach of terms:
how were the terms breached
Consequences of the breach
what was the impact of the breach to you or the business, applies the facts to the
consequence
Damage and loss:
what financial damage or loss was suffered as a result of breach
CPR 1- OVERRIDING OBJECTIVE
Overring objective of the court to deal with cases in cost appropriate and timely
manner
Need to provide as much specific detail about what is to be proved and evidence is
needed- example the parties, the date and what was agreed etc.
Elements to Facts to prove Available Evidence to
prove evidence obtain
No issue of remoteness because DMS aware of all of the facts and requirement of
dates
, Practice Direction Pre-Action Conduct and Protocols 352-359
CASE ANALYSIS – CIVIL LITIGATION
Step 1: Record the Names of the parties;
facts of the case Events that took place
Step 2: Is there a Breach of contract
cause of action? Negligence
Negligent misstatement
Misrepresentation
Nuisance
Step 3: What are the E.g. For breach of contract you must consider:
legal and factual
elements to
establish for each Is there a contractual relationship between the parties?
cause of action? What are the terms of the contract?
Have any terms been breached? Are they express or implied terms?
Were they agreed orally, or were written terms recorded in the
documents?
Categorise the term(s) breached. Is it a condition, a warranty or an
innominate term?
Can causation be established?
What is the loss/damage?
Step 4: What What evidence do you already have to support the cause of action? What
evidence is there? evidence might the other side or a third party already have?
What evidence do you need to obtain in order to establish your client’s
case? What evidence might come to light that could weaken it?
Step 5: What are the Are there any expressed or implied terms that are relied on during the
terms that are relied contract?
on?
What remedies may Damages:
be available? In contract, to put the injured party in the position it would have been had
the contract been properly performed.
In tort, to place the claimant in the position it would have been had the tort
not been committed.
Have steps been taken to comply with any duty to mitigate?
Other remedies, such as specific performance.
Is it a viable option Who are they?
to sue the Where are they?
defendant? If a company, are they solvent?
Do they have assets?
,Conclusion: What are the client’s prospects of success? What further information is
required? What are the strengths and weaknesses of the potential case?
Should alternative dispute resolution be recommended?
Summary: breach of Contract (it’s formation – parties, date, written or oral, subject matter
contract (goods, goods and services/materials and work, services), consideration
Terms relied on (express / or implied)
Breach of those terms,
Factual consequences of the breach of those terms;
Damage and loss
, NEGLIENCE CASE ANALYSIS TABLE EXAMPLE (TB p419)
Elements to Facts to establish Available evidence
establish
Duty of Care That the clients occupy the Clients own the property and saw Mr Templar
property and Mr Templar enter the driveway in his car.
(a road user) entered onto
the driveway
Breach of duty By driving too fast and Clients who saw Mr Templar do this.
erratically, Mr Templar lost
control, left the drive and Evidence to obtain:
did not avoid crashing into
the extension. Expert evidence: an examination of the
vehicle/driveway may produce evidence which
supports the clients evidence as to the speed of
the vehicle/loss of control.
Causation That by crashing into the Clients who saw Mr Templar do this.
extension the clients
thereby suffered loss.
Loss and damage Damage to garden, the Clients
extension, some
furnishings and fittings. Evidence to obtain:
An expert will need to produce a report detailing
the damage to the extension and the cost of
repair.
