Summary Dispute Resolution Revision Notes (Distinction Level)

,DISPUTE
RESOLUTION




LEGAL PRACTICE COURSE
REVISION NOTES

, CAUSE OF ACTION – BREACH OF CONTRACT

IDENTIFY  Identify client: [NAME]
PARTIES  Identify Opponent: [NAME]
CAUSE OF  State “this is a claim for a breach of a written contract made on [DATE] for
ACTION [COMPANY] Ltd to do [ACTION]”
 Basic: Claimant has 6 years from the date when the cause of action
LIMITATION accrued
ISSUES  Accrued: as soon as the breach of contract occurs. With an anticipatory
breach of contract, the cause of action accrues when the intention not to
perform the contract is made clear, and not at later date when
performance was due (Honchester)

ELEMENTS TO FACTS TO ESTABLISH AVAILABLE EVIDENCE EVIDENCE TO OBTAIN
ESTABLISH
There was an oral or  We have a copy of  Copies of any
written contract between the written previous contracts
CONTRACT C and D to [WHAT contract [DATED]  Anything to
EXISTS CONTRACT WAS FOR,  There is a establish previous
DATES, AND DETAILS] telephone course of dealings
memorandum  Letters, emails,
Be as specific as possible proving it phone logs [CHECK
here, including full details  Witness FACTS]
statements
SGA 1979
s. 14(2): satisfactory
quality
s. 14(2A): regarded
satisfactory by a
reasonable person
IMPLIED/ s. 14(3): reasonably fit for  SGA
EXPRESS TERM purpose made known  SGSA  Witness
s. 13: Goods must  Express terms statements
correspond to  Notes of
description. correspondence
 Unlikely to be
SGSA 1982 disputed
s. 3: Same as SGSA 13 but
services/goods in service
contracts
s. 4: goods transferred in
course of business will be
of satisfactory quality and
reasonably fit for purpose
s. 13: service supplied will
be of reasonable care and
skill

, s. 14: reasonable time
 Examples of the  Witness
Describe how any of the items themselves statements
terms above were [NAME]  Expert reports
BREACH breached. Be specific and  Any photographs  CCTV installation
apply the facts as much as of them  Photographs
possible  Expert evidence  Statements from
[NAME] consumers
 Internal reports  Example of process
[BY]
 Quality control
person
Briefly explain and clearly
state how the above
breach caused the loss  Receipts
 Order cancellations
CAUSING LOSS “That the breach  Accounts drawn up  Loss of bargain
described above caused a  Letters, emails,
loss of [AMOUNT] telephone
because there was a need  Accounts from
to [ACTION] and we lost external
out on large profits as
[MISSED OUT]/and we will
now have to [SORT OUT]”
AMOUNT OF “The amount of loss and N/A N/A
LOSS AND damage, namely [WHAT]
DAMAGE costing [PRICE]”
Say that the loss was
within the reasonable
contemplation of both
parties at the time the  Telephone
contract was made and conversation N/A
REMOTENESS that the loss was a specifying that the
probable consequence of sale of [ITEMS]
the breach. must coincide with
[EVENT]
Damages should be
awarded as per Hadley v
Baxendale (naturally
flowing from the breach)

 If asked to prepare as a memo, use clear headings, an introduction, numbering, and a
sign off

, CAUSES OF ACTION - NEGLIGENCE

IDENTIFY  Identify client: [NAME]
PARTIES  Identify Opponent: [NAME]
CAUSE OF  State “this is a negligence claim for [ACTION]”
ACTION
 Basic: Claimant has 6 years from the date when the cause of action
LIMITATION accrued
ISSUES  Accrued: when the tort is committed. The cause of action accrues only
when some damage occurs. This may be at a date considerably later than
that when the breach of duty itself occurred


ELEMENTS TO FACTS TO ESTABLISH AVAILABLE EVIDENCE EVIDENCE TO OBTAIN
ESTABLISH
That there was a duty of
care owed, either an  Usually available  If the duty is to be
established one (doctor / from documentary established, this is
DUTY OF CARE patient, solicitor / client) or evidence not likely to be
through the Caparo Test  Consider CCTV to disputed
(harm reasonably show actions
foreseeable, proximate
relationship, fair, just and
reasonable)
 Anything that
 Consider eye indicates that D
Must show that the person witnesses knew or ought to
breached the duty that they  Correspondence have known that C
BREACH OF owed. Apply to the facts and between C and D believed that they
DUTY state what must be shown may mention were not in
relevant breach
information  CCTV/video of
 This will be a key [EVENTS]
disputed area  Expert evidence
 May not be
Must show that the D’s  C’s statement that disputed unless D
breach of duty caused loss they did [ACTION] claims it never
CAUSATION to your client, C in reliance on D’s happened
report/statement  Consider if C can
“By [ACTION], the client  Consider if there credibly show
suffered financial loss are any eye they would not
and/or personal injury” witnesses have done
[ACTION] if they
had not relied on
D’s

, report/statement
C has suffered loss of a type
which was reasonably  C will state that the  Get expert
LOSS foreseeable by the D. loss suffered was a evidence to
Explain the type of loss and type of loss confirm the loss
how it is related (state that reasonable claimed
it was foreseeable that this foreseeable
type of loss would be
incurred due to [ACTION])

Cannot usually claim for
pure economic loss – but
can in e.g. negligent
misstatement (Hedley
Byrne: Special relationship –
Assumption of risk by ‘D’
and reasonable reliance by
‘C’).

, PRE-ACTION CONSIDERATIONS




CPR 1.1: ‘Overriding Objective’: To resolve disputes justly and
at proportionate cost.
CPR 1.2: Ensure parties on equal footing, dealt with
Litigation to be Last
expeditiously and fairly, dealt with proportionately.
Resort
CPR 1.3: Parties to aid court in furthering overriding objective.
CPR 1.4: Court to manage cases to meet objective, (2)(e)
Parties to consider ADR.




PD-PAC Para.1: Pre-action protocols explain conduct and set
out steps court expects parties to take before commencing
proceedings.
Claimants must comply PD-PAC 3: Court expects parties to exchange sufficient
with CPRs & PD-PAC information to (a) understand each other’s position, (b) make
decisions on how to proceed, (c) try to settle without
proceedings, (d) consider ADR,.., (f) reduce costs of resolving
dispute.

, Once solicitor advised of valid claim, should advise client to
send letter to prospective defendant setting out details of
claim.
Solicitor should send letter to defendant’s solicitor so as not
Letter Before Claim to abuse power over unqualified professional (Principle 5 SRA
Codes)
PD-PAC 6(a): Letter should give concise details about the
matter (facts and what claimant wants). Key documents to be
included.




STEPS TO TAKE


Letter should include:
 ‘C’s full name & address;
 Basis on which claim is made;
 Summary of facts;
 What ‘C’ wants;
 If financial loss, how calculated;
 List essential documents;
 Form of ADR considered suitable;
 Date ‘C’ considers it reasonable for a
response;
 Ask for copies of documentation ‘C’ wishes
to see
Send Letter Before Claim If ‘D’ not legally represented;
 Refer to PD (esp. para. 16);
 Inform that ignoring letter could lead
to proceedings;
 Warn of claim for interest in
proceedings that may be commenced;
 Suggest independent legal advice
Headings: Factual basis of claim, legal basis,
consequence of breach, financial terms,
documents, ADR proposal, deadlines for
acknowledgement & response (within 14
days and 30 days of receipt respectively)



PD-PAC 6(b): Respond within reasonable
time – 14 days straightforward case, no
more than 3 months in complex case.
‘D’ must respond
Should include whether claim accepted – If
not, reasons why and explanations of facts
and claims disputed