Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
Unit 1: Pre-Action Steps
Preparatory Task
Element Facts to Prove Available Evidence to obtain
Evidence
A contract Clarkes and DMS Written contract None required
existed between entered into a b/w Clarkes & (dispute unlikely)
[…] written contract DMS dated 2 Feb
dated 2 Feb xx18 xx18
Express terms DMS agreed to Written contract None required
[Note: clearly print and bind and between Clarkes
relevant to deliver 500,000 and DMS dated
establish these, copies of A 02/02/18. Clause
even though on Striker’s Dream by 2, 4 and 5
the facts no 26/05/18 at a
breach will be price of £325,000
alleged] inclusive of VAT
Implied terms Books not printed Sale of Goods and Statute is sufficient
[breach alleged / and bound with Services Act
relevant terms reasonable care because it is a
on these fact] and skill. B2B contract
Need to prove
books not of Implied by statute
satisfactory into the contract
quality.
Supply of Goods s. 4 Goods not of
and Services Act as satisfactory
providing a service quality
and product.
Implied term that s. 13 implied term
printing/binding is to carry out
to be done with service with
skill. reasonable care
and skill
Breach Printing and Books themselves Carter’s PoE
binding not carried (wrinkled covers
out with and Professor Harding’s
reasonable care delamination) report
and skill
Books not of Branning’s PoE Evidence of
1
, Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
satisfactory quality (books could not complaints from
be sold) retailers
Consequences Books withdrawn Branning’s PoE Professor Harding’s
[ / causation ] from sale. report
Had to be
reprinted
(additional
printing costs).
Published after TV
show released
Remoteness Extra payments / PoE Alison None
loss of profit are a Branning states
natural that DMS knew of
consequence of the tie-in
breach or were in Original written
Clarkes’ and DMS’ contract of 2 Feb
reasonable explicitly
contemplation at mentions TV
the time of series
contract.
Loss Printing costs
Paid DMS £ Also consider
125,000 mitigation:
Paid Intl. £ • books
375,000 donated to
TOTAL £ 500,000 charity:
evidence of
CT price £ quotations to
325,000 show Books
Overpaid: £ of no value?
175,000 • Reprinting –
best value?
Profits £ 542,275
TOTAL £ 717,275
Case Analysis – Further Points
• Consider Limitation; check the contract
• Viability of the proposed defendant
• Is DMS solvent
• Where is DMS based – in the jurisdiction?
• NB: broader cost / benefit points:
• Is it worth it in damages v costs terms?
2
, Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
• Even if reasonable prospects of success, does the client want to
pursue / what are client’s objectives?
Prospects of Success:
• Clearly a potential claim
• But too early to say
• More docs need to be found; Prof H’s report could be crucial
• Also some potential weaknesses – Thompsons and the storage issue; plus
potential failure to mitigate issues in respect of reprinting costs
Next Steps:
• Often in litigation = letter before claim
• But it is too early to do that – too much is uncertain
• Next steps = therefore for weaknesses to be investigated (by Clarkes); docs
including Prof H report to be provided (by Clarkes); and us to take POE from
Emma Carter
• We will then be able to update our case analysis / review prospects of
success
Workshop Task 1
Dispute Resolution Options
• Arbitration
o Pros
! Private
o Cons
! Not good for maintaining relationship
! Originally was quicker and cheaper option, but not anymore
• Expert Determination/ appraisal
o Pros
! Turns on Prof’s report which is good for this method
! Cheaper if results in settlement
o Cons
! Neither party is bound by this, so could still proceed to
litigation
! Parties still don’t have to follow decision, would just be a
breach of contract
3
, Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
• Mediation
o Pros
! Best way to keep business relationship
! If parties are still not seeing eye-to-eye, mediation would help
to leverage good relationships
o Cons
! Try negotiation first – mediation doesn’t add anything
• Litigation
o Pros
! Going to be public
! Get binding solution
! Run off of a definite time-scale
o Cons
! Very expensive
! Could take a long time
! Can’t preserve relationships
Workshop Task 2
Advice to Clarkes on Funding Options
Conditional Fee Agreements ss58&58A CLSA 1990
• Permitted - in writing
• Lose - don’t pay ULaws fees, pay disbursements
• Win - pay ULaws fees, disbursements & success fee
• Success fee – max. 100%
• Risk Assessment
• Success fee & any insurance premium not recoverable from opponent
• Recover ‘normal’ fees from opponent
• NB opponent’s costs
Damages Based Agreement s58AA CLSA 1990
• Permitted – in writing
• Basic principle – win, recover damages & pay ULaws a percentage of
damages as fees
• Fees capped at 50% of damages
• Includes VAT and Counsel fees
• Excludes other disbursements – pay in addition
• If Win can recover costs from DMS in addition to damages, will reduce
Clarkes’ liability for ULaws’ fees to be paid from damages (not total amount
paid to ULaws)
4
Unit 1: Pre-Action Steps
Preparatory Task
Element Facts to Prove Available Evidence to obtain
Evidence
A contract Clarkes and DMS Written contract None required
existed between entered into a b/w Clarkes & (dispute unlikely)
[…] written contract DMS dated 2 Feb
dated 2 Feb xx18 xx18
Express terms DMS agreed to Written contract None required
[Note: clearly print and bind and between Clarkes
relevant to deliver 500,000 and DMS dated
establish these, copies of A 02/02/18. Clause
even though on Striker’s Dream by 2, 4 and 5
the facts no 26/05/18 at a
breach will be price of £325,000
alleged] inclusive of VAT
Implied terms Books not printed Sale of Goods and Statute is sufficient
[breach alleged / and bound with Services Act
relevant terms reasonable care because it is a
on these fact] and skill. B2B contract
Need to prove
books not of Implied by statute
satisfactory into the contract
quality.
Supply of Goods s. 4 Goods not of
and Services Act as satisfactory
providing a service quality
and product.
Implied term that s. 13 implied term
printing/binding is to carry out
to be done with service with
skill. reasonable care
and skill
Breach Printing and Books themselves Carter’s PoE
binding not carried (wrinkled covers
out with and Professor Harding’s
reasonable care delamination) report
and skill
Books not of Branning’s PoE Evidence of
1
, Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
satisfactory quality (books could not complaints from
be sold) retailers
Consequences Books withdrawn Branning’s PoE Professor Harding’s
[ / causation ] from sale. report
Had to be
reprinted
(additional
printing costs).
Published after TV
show released
Remoteness Extra payments / PoE Alison None
loss of profit are a Branning states
natural that DMS knew of
consequence of the tie-in
breach or were in Original written
Clarkes’ and DMS’ contract of 2 Feb
reasonable explicitly
contemplation at mentions TV
the time of series
contract.
Loss Printing costs
Paid DMS £ Also consider
125,000 mitigation:
Paid Intl. £ • books
375,000 donated to
TOTAL £ 500,000 charity:
evidence of
CT price £ quotations to
325,000 show Books
Overpaid: £ of no value?
175,000 • Reprinting –
best value?
Profits £ 542,275
TOTAL £ 717,275
Case Analysis – Further Points
• Consider Limitation; check the contract
• Viability of the proposed defendant
• Is DMS solvent
• Where is DMS based – in the jurisdiction?
• NB: broader cost / benefit points:
• Is it worth it in damages v costs terms?
2
, Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
• Even if reasonable prospects of success, does the client want to
pursue / what are client’s objectives?
Prospects of Success:
• Clearly a potential claim
• But too early to say
• More docs need to be found; Prof H’s report could be crucial
• Also some potential weaknesses – Thompsons and the storage issue; plus
potential failure to mitigate issues in respect of reprinting costs
Next Steps:
• Often in litigation = letter before claim
• But it is too early to do that – too much is uncertain
• Next steps = therefore for weaknesses to be investigated (by Clarkes); docs
including Prof H report to be provided (by Clarkes); and us to take POE from
Emma Carter
• We will then be able to update our case analysis / review prospects of
success
Workshop Task 1
Dispute Resolution Options
• Arbitration
o Pros
! Private
o Cons
! Not good for maintaining relationship
! Originally was quicker and cheaper option, but not anymore
• Expert Determination/ appraisal
o Pros
! Turns on Prof’s report which is good for this method
! Cheaper if results in settlement
o Cons
! Neither party is bound by this, so could still proceed to
litigation
! Parties still don’t have to follow decision, would just be a
breach of contract
3
, Dispute Resolution Preparatory and Workshop Task Notes - Stuvia
• Mediation
o Pros
! Best way to keep business relationship
! If parties are still not seeing eye-to-eye, mediation would help
to leverage good relationships
o Cons
! Try negotiation first – mediation doesn’t add anything
• Litigation
o Pros
! Going to be public
! Get binding solution
! Run off of a definite time-scale
o Cons
! Very expensive
! Could take a long time
! Can’t preserve relationships
Workshop Task 2
Advice to Clarkes on Funding Options
Conditional Fee Agreements ss58&58A CLSA 1990
• Permitted - in writing
• Lose - don’t pay ULaws fees, pay disbursements
• Win - pay ULaws fees, disbursements & success fee
• Success fee – max. 100%
• Risk Assessment
• Success fee & any insurance premium not recoverable from opponent
• Recover ‘normal’ fees from opponent
• NB opponent’s costs
Damages Based Agreement s58AA CLSA 1990
• Permitted – in writing
• Basic principle – win, recover damages & pay ULaws a percentage of
damages as fees
• Fees capped at 50% of damages
• Includes VAT and Counsel fees
• Excludes other disbursements – pay in addition
• If Win can recover costs from DMS in addition to damages, will reduce
Clarkes’ liability for ULaws’ fees to be paid from damages (not total amount
paid to ULaws)
4
