Acing the SQE/Dispute Resolution/Resolving a dispute through a civil claim

Resolving a dispute through a civil claim

preliminary considerations: limitation, pre-action protocols

Limitation: There are time limits for bringing a civil claim, known as the limitation period. The limitation period varies depending on the type of claim, but in most cases, it is six years from the date of the event that caused the dispute. It's important to be aware of the limitation period and ensure that the claim is brought within the prescribed time limit.

Pre-action protocols: Before issuing a claim, parties are expected to follow the relevant pre-action protocol. The pre-action protocol sets out the steps that parties should take before commencing proceedings, including exchanging information and attempting to resolve the dispute through negotiation or alternative dispute resolution (ADR). Failure to comply with the pre-action protocol may result in cost sanctions.

parties and causes of action

In England and Wales, a dispute can be resolved through a civil claim in court. The parties involved in a civil claim can include individuals, businesses, organizations, and government bodies. The party bringing the claim is known as the claimant or plaintiff, while the party defending the claim is known as the defendant.

There are many different causes of action that can give rise to a civil claim in England and Wales. Some common causes of action include:

Breach of contract: When one party fails to fulfill their obligations under a contract, the other party may bring a claim for breach of contract.

Negligence: When one party owes a duty of care to another party and breaches that duty, resulting in damage or loss to the other party, the injured party may bring a claim for negligence.

Defamation: When a person makes a false statement that harms another person's reputation, the injured party may bring a claim for defamation.

Trespass: When a person enters another person's property without permission, the owner of the property may bring a claim for trespass.

Breach of fiduciary duty: When a person who owes a fiduciary duty to another person breaches that duty, resulting in harm or loss to the other person, the injured party may bring a claim for breach of fiduciary duty.

Nuisance: When a person's use or enjoyment of their property is interfered with by another person, the affected party may bring a claim for nuisance.

These are just a few examples of the many causes of action that can give rise to a civil claim in England and Wales. The appropriate cause of action will depend on the specific facts of each case.

In order to bring a civil claim in England and Wales, the claimant must file a claim form with the court and serve it on the defendant. The defendant will then have an opportunity to respond to the claim, and the case will proceed through the court system. Ultimately, the court will make a decision on the merits of the case, based on the evidence presented by both parties.

calculating limitation periods for claims in contract and tort

For claims in contract, the limitation period is usually six years from the date of breach of contract. This means that a claim for breach of contract must be brought within six years of the date when the breach occurred. However, in some cases, the limitation period may be extended to 12 years if the contract is executed as a deed.

For claims in tort, the limitation period is usually six years from the date when the cause of action accrued. This means that a claim for tort must be brought within six years of the date when the damage occurred, or the claimant became aware of the damage. However, in some cases, the limitation period may be shorter. For example, the limitation period for personal injury claims is three years from the date of the accident or injury.

It's important to note that limitation periods can be complex and depend on the specific circumstances of each case. In some cases, the limitation period may be extended or suspended, for example, if the claimant was under a disability or the defendant fraudulently concealed the cause of action. It's therefore important to seek legal advice to determine the limitation period that applies to a particular claim.

In summary, the limitation period for claims in contract is usually six years from the date of breach, while the limitation period for claims in tort is usually six years from the date when the cause of action accrued. However, the limitation period can vary depending on the specific circumstances of each case, and it's important to seek legal advice to determine the appropriate limitation period for a particular claim.

principles and purpose of pre-action protocols governing particular claims and consequences for failure to follow their terms

In English civil litigation, pre-action protocols are sets of rules and procedures that govern the conduct of parties before commencing formal legal proceedings. The purpose of pre-action protocols is to encourage the early resolution of disputes, reduce costs, and promote efficient use of court resources.

The principles underlying pre-action protocols include the duty of parties to communicate with each other in a timely and constructive manner, to exchange information relevant to the dispute, to explore alternative methods of dispute resolution, and to avoid unnecessary litigation.

There are various pre-action protocols that apply to specific types of claims, such as personal injury, construction disputes, professional negligence, and debt claims. Each protocol sets out the specific steps that parties should take before commencing legal proceedings, such as exchanging letters of claim and response, providing relevant documents, and attending pre-action meetings.

If a party fails to follow the terms of a pre-action protocol, there may be consequences in terms of costs and case management. For example, a court may order the defaulting party to pay costs incurred as a result of their failure to comply with the protocol, or may stay or strike out the claim altogether. It is therefore important for parties to be aware of and comply with the relevant pre-action protocols to avoid these potential consequences.

applicable law: mechanisms to determine which country’s laws apply to a contractual or tortious claim issued in the courts of England and Wales

In England and Wales, the applicable law in contractual and tortious claims is determined by the rules of private international law, which are commonly referred to as "the conflict of laws." The conflict of laws rules provide a framework for determining which country's laws should be applied in a case where there is a foreign element involved.

For contractual claims, the applicable law is determined by the Rome I Regulation, which is a European Union regulation that governs the law applicable to contractual obligations in civil and commercial matters. The regulation sets out a number of rules to determine which country's law should apply, based on various factors such as the place of performance of the contract, the nationality or habitual residence of the parties, and the governing law chosen by the parties in the contract.

In tortious claims, the applicable law is determined by the Rome II Regulation, which is another EU regulation that governs the law applicable to non-contractual obligations in civil and commercial matters. The regulation sets out a number of rules to determine which country's law should apply, based on various factors such as the country in which the damage occurred, the country in which the event giving rise to the damage occurred, and the country where the parties are domiciled or habitually resident.

In cases where there is no clear connection with any particular country, the court may apply the common law rules of private international law to determine the applicable law. These rules include the principle of closest connection, which involves considering various factors such as the place of the relevant conduct and the nationality or domicile of the parties to determine which country's law has the closest connection to the dispute.

Overall, the determination of the applicable law can be a complex and fact-specific process, and it is important for parties to seek legal advice to ensure that they are aware of their rights and obligations under the relevant laws.

jurisdiction: mechanisms to determine jurisdiction over an international contractual or tortious claim

In English civil litigation, determining whether a court has jurisdiction over an international contractual or tortious claim involves a number of mechanisms. These mechanisms include the application of the Brussels I Regulation (recast), which is a European Union regulation that governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Under the Brussels I Regulation, a defendant can be sued in the courts of the Member State where they are domiciled. This is known as the principle of domicile jurisdiction. If the defendant is not domiciled in an EU Member State, jurisdiction may be determined by other factors, such as the place where the contract was performed or the place where the harmful event occurred.

In addition to the Brussels I Regulation, the English courts may also apply common law principles to determine jurisdiction. This involves considering various factors such as the connection of the dispute to England and Wales, the convenience of the parties and witnesses, and the availability of an alternative forum.

Furthermore, parties may agree on the jurisdiction of a particular court in their contract. In this case, the English courts will generally uphold the parties' choice of jurisdiction, unless there are exceptional circumstances that would make it unreasonable to do so.

Once a court has been determined to have jurisdiction, it will have the power to hear and determine the dispute. However, the court may also stay the proceedings if it is more appropriate for the dispute to be heard in another jurisdiction.

Overall, determining jurisdiction over an international contractual or tortious claim in English civil litigation involves a careful analysis of various factors and the application of both EU and common law rules. Parties should seek legal advice to ensure that they understand their rights and obligations under the relevant laws.