Dispute Resolution – Workshop 1 – Case Analysis, ADR and Funding
Five stages of litigation
1. Pre-Commencement
2. Commencement of the Action
a. Statement of case
b. Allocation to a track – small, multi and fast.
3. Interim Matters – Case Management Directions
4. The Trial
5. Post-Trial – Appeal(s) – Costs – Enforcement
Breach of Contract – Elements to prove
- Existence of the contract
- Relevant Terms – what we go on to say, because they are breached.
- Breach of Relevant Terms
- Causation
- Loss
Consumer Rights Act – business to consumer.
Supply of Goods and Services Act 1982 – business to business.
- DMS were not simply selling books off the shelf.
- It is not a sale by sample.
+ S.15 Supply of Goods & Services Act – is not relevant here because the
contract was signed before any books were sent to DMS.
Client: Clarke and Sons – Alison Branning
Opponent: DMS
Cause of action: Breach of contract
Elements to Facts to prove Available evidence Evidence to obtain
prove
A contract Clarkes and DMS entered Written contract None required – highly unlikely of a
existed into a written contract between Clarkes dispute to occur regarding entering
between C&S into a contract.
on 2 Feb xx18 and DMS dated 2 Feb xx18
and DMS
Express terms DMS agreed to print and We can use the written Same, dispute unlikely. Can use
[Note: clearly bind and deliver 500,000 contract. written contract to prove.
relevant to
copies of ‘A Striker’s Dream’
establish these,
by
even though on
facts no breach 26 May xx18 at a price of
will be alleged] £325,000
,Implied terms DMS provided services in DMS was acting in the course N/A – the terms are implied by statue
(relevant the course of business i.e. of business is evidence by the – unlikely to be disputed, Clear on the
terms/breach printing, binding and written contract. fact & evidence.
will be of these) delivering goods. Finished Alison Branning also confirms
books to Clarkes, services of in her proof of evidence.
printing & binding – they
s.4 and s.13 of the SoGaS are
supplied the goods – so it is
implied into the contract.
a supply of goods &
services. The goods being s.4 – books should have been
the finished books. Done as of satisfactory quality; and
a business, as printers & s.13 – the printing and binding
bookbinders. should been carried out with
reasonable care & skill.
Breach of Implied terms breached; Alison Branning – Proof of The books or some of the books that
relevant terms Printing and binding was not Evidence, wrinkling, were returned. Check with Alison if
carried out with reasonable delamination and rejection by any books were preserved to show
care & skill customers. the condition that they’re in. Ensure
she keeps some of the books.
and/or the books were not
produced of a satisfactory Complaints – from retailers, what did
quality – books were they say about the problem? Any
wrinkled and delaminating. attendance notes of phone calls,
letters retailers may have sent?
Report from Prof Harding.
Take Proof of Evi from Emma Carter –
head of Quality Control.
Consequences/ Prove; Alison Branning – Proof of Need to bolster Alison’s evidence.
[Causation] As a result of the breach/s Evidence. Prof Harding report – deal with
(deal with (satisfactory quality & causation in the report.
causation as a reasonable care & skill)… Adverse point – problems caused by
result of breach Books were unsaleable, had Clarkes’ storage post-delivery by DMS
flowed onto to be withdrawn, – find more evidence.
consequences) consequently, additional
printing was required. Likely DMS will put that point against
Clarkes then missed the tv us, so we do need to close that off to
launch, resulting in a loss of show that all of these consequences
profit. were as a result of a breach by DMS
and not by the storage facility that we
used post-delivery.
,Remoteness Need to show that the extra Alison – PoE – states that N/A
payments/loss of profit are DMS knew of the tie-in with tv
a natural consequence of programme;
breach or were in Clarkes’
and DMS’ reasonable
Written contract of 2 Feb
contemplation at the time
which explicitly mentions the
of the contract.
tv series.
Can say that those losses
were/or all to coincide with
the launch of the tv show –
was within reasonable
contemplation at the time the
contract was formed.
Loss/Quantum Printing Costs Alison - Proof of Evidence – Contract with International Printers;
Paid DMS £125,000 sets out losses (which did not and
amount to £900k, see total
Paid Intl P £375,000
)
TOTAL - £500,000 Proof of Evidence from whoever
negotiated the contract for additional
Written contract sets out printing costs – (£375k) / Receipts.
Contract price - £325,000 contract price & when
Loss on printing - £175,000 payments were due. To some
Accounting details from Clarkes –
– prove they overpaid, extent evidences loss – first
what the loss of profit was.
difference between total instalment being of £125k.
and CP. Maybe expert accountant in due
course will be needed to prove that
profit loss arose as a result of the
Prove loss of profits. Profits breach only.
- £542,275.
Total loss, £717,275 (add
Also consider mitigation:
profits a overpaid) – loss is
not £900k
Books donated to charity – why did
Clarkes decide the books were of no
value? what inquiries were made,
what responses we got to reach
conclusion that books were of no
value, and so we didn’t get anything
for them and;
Whether Clarkes got the best price on
reprinting, which is why we need –
not just to show how much was paid
but what inquiries were made – need
proof of evidence from whoever
negotiated the printing contract.
Limitation - Are we still within time to bring this claim?
- Check contract – breach of contract, there is a shortened limitation period – if you get this
wrong, potential negligence claim if it is not checked & noted on the case management
system with reminder and a wrong assumption is made.
, Viability of the - Is DMS solvent? No point Clarkes spending money and time if they will not recover costs &
proposed damages.
defendant - Jurisdiction – where is DMS based? Check relevant law, England and Wales?
Broader Costs - Is it worth it? Damages v Costs?
- Even if damages are recovered, unlikely that costs will be recovered in full. Clarkes need to
know from the outset.
Prospects of - Even if the case has reasonable prospects of success, does the client want to pursue it?
Success - What are the client’s objectives? What would be their ideal outcome and can this be achieved
via litigation?
- Is their objective going to preserve the business relationship at all costs or is it to obtain
damages?
Prospects of Success Next Steps?
- Clear potential claim. - Often in litigation – letter before claim.
- Too early to say. - But too early to do that – too much is uncertain.
- More documents needed – Prof H’s report is - Next steps – therefore for weaknesses to be
crucial in the case. investigated (by Clarkes); docs including Prof H
- Potential weaknesses – Thompsons and the report to be provided (by Clarkes); and us to take
storage issue; plus failure to mitigate issues in Proof of Evidence from Emma Carter.
respect of printing costs and disposal of books. - We will then be able to update out case analysis
and review prospects of success.
FUNDING
Solicitor should explain to the client the distinction between solicitor and client costs (ie, the sum
the client must pay to his own solicitor) and costs that may be awarded between the parties in
litigation.
Client loses case pay his own solicitor’s costs and normally, additionally opponent’s costs.
CPR Rule 44.2(2)(a) general rule the unsuccessful party in litigation will be ordered to pay the
costs of the successful party.
Opponent’s costs are not necessarily all the costs incurred by the opponent – Court will assess what
costs the client must pay towards the opponent’s costs (unless there is agreement on this amount
between parties).
Client will have to pay his opponent only such costs are as ordered by the court or agreed between
parties.
Client wins case still have to pay own solicitor’s costs – normally receive his costs from opponent
(either previously agreed or sum assessed by Court).
If the costs recovered are, as is usual, less than the costs paid, the client will have to bear the loss.
If opponent goes bankrupt or disappears – client may not recover costs even if he wins the case.
Five stages of litigation
1. Pre-Commencement
2. Commencement of the Action
a. Statement of case
b. Allocation to a track – small, multi and fast.
3. Interim Matters – Case Management Directions
4. The Trial
5. Post-Trial – Appeal(s) – Costs – Enforcement
Breach of Contract – Elements to prove
- Existence of the contract
- Relevant Terms – what we go on to say, because they are breached.
- Breach of Relevant Terms
- Causation
- Loss
Consumer Rights Act – business to consumer.
Supply of Goods and Services Act 1982 – business to business.
- DMS were not simply selling books off the shelf.
- It is not a sale by sample.
+ S.15 Supply of Goods & Services Act – is not relevant here because the
contract was signed before any books were sent to DMS.
Client: Clarke and Sons – Alison Branning
Opponent: DMS
Cause of action: Breach of contract
Elements to Facts to prove Available evidence Evidence to obtain
prove
A contract Clarkes and DMS entered Written contract None required – highly unlikely of a
existed into a written contract between Clarkes dispute to occur regarding entering
between C&S into a contract.
on 2 Feb xx18 and DMS dated 2 Feb xx18
and DMS
Express terms DMS agreed to print and We can use the written Same, dispute unlikely. Can use
[Note: clearly bind and deliver 500,000 contract. written contract to prove.
relevant to
copies of ‘A Striker’s Dream’
establish these,
by
even though on
facts no breach 26 May xx18 at a price of
will be alleged] £325,000
,Implied terms DMS provided services in DMS was acting in the course N/A – the terms are implied by statue
(relevant the course of business i.e. of business is evidence by the – unlikely to be disputed, Clear on the
terms/breach printing, binding and written contract. fact & evidence.
will be of these) delivering goods. Finished Alison Branning also confirms
books to Clarkes, services of in her proof of evidence.
printing & binding – they
s.4 and s.13 of the SoGaS are
supplied the goods – so it is
implied into the contract.
a supply of goods &
services. The goods being s.4 – books should have been
the finished books. Done as of satisfactory quality; and
a business, as printers & s.13 – the printing and binding
bookbinders. should been carried out with
reasonable care & skill.
Breach of Implied terms breached; Alison Branning – Proof of The books or some of the books that
relevant terms Printing and binding was not Evidence, wrinkling, were returned. Check with Alison if
carried out with reasonable delamination and rejection by any books were preserved to show
care & skill customers. the condition that they’re in. Ensure
she keeps some of the books.
and/or the books were not
produced of a satisfactory Complaints – from retailers, what did
quality – books were they say about the problem? Any
wrinkled and delaminating. attendance notes of phone calls,
letters retailers may have sent?
Report from Prof Harding.
Take Proof of Evi from Emma Carter –
head of Quality Control.
Consequences/ Prove; Alison Branning – Proof of Need to bolster Alison’s evidence.
[Causation] As a result of the breach/s Evidence. Prof Harding report – deal with
(deal with (satisfactory quality & causation in the report.
causation as a reasonable care & skill)… Adverse point – problems caused by
result of breach Books were unsaleable, had Clarkes’ storage post-delivery by DMS
flowed onto to be withdrawn, – find more evidence.
consequences) consequently, additional
printing was required. Likely DMS will put that point against
Clarkes then missed the tv us, so we do need to close that off to
launch, resulting in a loss of show that all of these consequences
profit. were as a result of a breach by DMS
and not by the storage facility that we
used post-delivery.
,Remoteness Need to show that the extra Alison – PoE – states that N/A
payments/loss of profit are DMS knew of the tie-in with tv
a natural consequence of programme;
breach or were in Clarkes’
and DMS’ reasonable
Written contract of 2 Feb
contemplation at the time
which explicitly mentions the
of the contract.
tv series.
Can say that those losses
were/or all to coincide with
the launch of the tv show –
was within reasonable
contemplation at the time the
contract was formed.
Loss/Quantum Printing Costs Alison - Proof of Evidence – Contract with International Printers;
Paid DMS £125,000 sets out losses (which did not and
amount to £900k, see total
Paid Intl P £375,000
)
TOTAL - £500,000 Proof of Evidence from whoever
negotiated the contract for additional
Written contract sets out printing costs – (£375k) / Receipts.
Contract price - £325,000 contract price & when
Loss on printing - £175,000 payments were due. To some
Accounting details from Clarkes –
– prove they overpaid, extent evidences loss – first
what the loss of profit was.
difference between total instalment being of £125k.
and CP. Maybe expert accountant in due
course will be needed to prove that
profit loss arose as a result of the
Prove loss of profits. Profits breach only.
- £542,275.
Total loss, £717,275 (add
Also consider mitigation:
profits a overpaid) – loss is
not £900k
Books donated to charity – why did
Clarkes decide the books were of no
value? what inquiries were made,
what responses we got to reach
conclusion that books were of no
value, and so we didn’t get anything
for them and;
Whether Clarkes got the best price on
reprinting, which is why we need –
not just to show how much was paid
but what inquiries were made – need
proof of evidence from whoever
negotiated the printing contract.
Limitation - Are we still within time to bring this claim?
- Check contract – breach of contract, there is a shortened limitation period – if you get this
wrong, potential negligence claim if it is not checked & noted on the case management
system with reminder and a wrong assumption is made.
, Viability of the - Is DMS solvent? No point Clarkes spending money and time if they will not recover costs &
proposed damages.
defendant - Jurisdiction – where is DMS based? Check relevant law, England and Wales?
Broader Costs - Is it worth it? Damages v Costs?
- Even if damages are recovered, unlikely that costs will be recovered in full. Clarkes need to
know from the outset.
Prospects of - Even if the case has reasonable prospects of success, does the client want to pursue it?
Success - What are the client’s objectives? What would be their ideal outcome and can this be achieved
via litigation?
- Is their objective going to preserve the business relationship at all costs or is it to obtain
damages?
Prospects of Success Next Steps?
- Clear potential claim. - Often in litigation – letter before claim.
- Too early to say. - But too early to do that – too much is uncertain.
- More documents needed – Prof H’s report is - Next steps – therefore for weaknesses to be
crucial in the case. investigated (by Clarkes); docs including Prof H
- Potential weaknesses – Thompsons and the report to be provided (by Clarkes); and us to take
storage issue; plus failure to mitigate issues in Proof of Evidence from Emma Carter.
respect of printing costs and disposal of books. - We will then be able to update out case analysis
and review prospects of success.
FUNDING
Solicitor should explain to the client the distinction between solicitor and client costs (ie, the sum
the client must pay to his own solicitor) and costs that may be awarded between the parties in
litigation.
Client loses case pay his own solicitor’s costs and normally, additionally opponent’s costs.
CPR Rule 44.2(2)(a) general rule the unsuccessful party in litigation will be ordered to pay the
costs of the successful party.
Opponent’s costs are not necessarily all the costs incurred by the opponent – Court will assess what
costs the client must pay towards the opponent’s costs (unless there is agreement on this amount
between parties).
Client will have to pay his opponent only such costs are as ordered by the court or agreed between
parties.
Client wins case still have to pay own solicitor’s costs – normally receive his costs from opponent
(either previously agreed or sum assessed by Court).
If the costs recovered are, as is usual, less than the costs paid, the client will have to bear the loss.
If opponent goes bankrupt or disappears – client may not recover costs even if he wins the case.
