Contract Claims
Two very common kinds of legal claims are those in the area of “contract” law and “tort”. Contract law refers to legal binding agreements and disputes commonly arise where parties to fulfil obligations. Tort law applies where some person has suffered loss or damage because of a wrong committed by another person.
Contract law in England is broadly similar to Ireland. Contracts will arise very informally in all types of every day situations. The purchase of any product or service involves a contract. Even though they might not be specified, there will be implied terms and conditions. It will only become significant if something supplied or services undertaken are faulty or are not provided at all or as agreed.
For example, a particular product might be purchased but it might not be work. This would generally mean the purchaser is entitled to a refund or compensation for breach of the implied term of the contract. The Sale of Goods Act implies general terms into all purchase of goods the effect that they are of good and reasonable quality fit for purpose etc. Therefore where a defective product is purchased the shop or seller will be liable for the failure of the particular product. On the other side where goods or services are provided and there is a sum clearly due the seller would have a legal claim, where payment is not made.
There are a whole host of circumstances which are commonly disputed in relation to the supply of goods and services. There might be disputes as to what was to be provided, when it was to be provided, by whom it was to be provided and what exactly was to be provided. Goods or services might be provided late. Even if parties accept that there might be liability issues arise as to the extent and amount of liability. All of these are common areas in which civil claims arise.
It is normally possible to claim compensation only in breach of contract cases, for direct and immediate loss. Usually this would mean the cost of replacing the particular goods or services or the loss in value because of the failure to comply with the terms of the contract. Because of the variety of circumstances that can arise, there is a very significant scope for dispute in contract cases.
In every day life and in business detailed agreements are not usually entered specifying every detail of what is to be provided, how it was to be provided and what would happen if it was not provided. In the event of a dispute, Courts retrospectively interpret what the parties intended and what they impliedly. There might be all kinds of ambiguity as to what parties really agreed, what happened and what the financial consequences or losses were involved.
Where circumstances go wrong there can be very unclear or potentially disputable matters. The Civil Procedure Rules endeavour to isolate and minimise the areas which are really in dispute with a view to avoiding inefficient and manipulative tactics which might be used by one person who is in a position to use an adversarial procedure against a weaker party.
The procedures for recovery of money or a definite sum are much simpler and swifter. Where there is a definite price or sum to be paid and the matter is not disputed Court procedures are much more informal. Unless a debt claim amount is seriously disputed it is normally possible to obtain a Court order without going to Court. The Court offices issues the papers and orders based on the sworn statements on the part of the parties. The Court order can then be enforced to procure payment.
Interest is usually allowed. There is similar legislation in Britain and Ireland in relation to interest and commercial debt. The general rate is 8% above the Bank of England rate. There are also fixed sums of compensation of between £40 and £100 varying in accordance with the amount of the debt.
Tort Claims
“Tort” is the law of civil wrong. The most common type of civil claim arise from negligence. Negligence refers to the general principle that where someone acts carelessly or fails to act with reasonable care and causes another person loss or damage as a result, that person is liable for the loss and damage incurred and must be compensate the other person.
Tort law protects personal and property “interests against wrongful intrusion” by a third party. It covers the whole range of possibilities from deliberate wrong doing by one individual to the personal welfare of another such as assault, false imprisonment to the careless or negligent causing of physical harm or economic loss.
A common tort claim arises from a motor accident where one person has incurred physical and financial loss by reason of the carelessness of another. In England the person injuries action remains with the Courts and has not been transferred to a body equivalent to the Personal Injuries Assessment Board (PIAB) as in Ireland.
Tort law also covers damage to goods, damage to reputation such as defamation, libel and slander or interference with business, damage to property and the whole range of interference with the legitimate personal welfare and financial interests of an individual.
Personal Injury Claims
Personal injury litigation relates to compensation for injuries which have been suffered. It typically includes road traffic accident claims, employer’s claims and public liability claims.
Road traffic claims typically involve property damage and also personal injury. Employer liability claims arise from work accidents. Public liability claims arise in matters such as faulty products or slips and falls in public places etc.
Clinical negligence refers to negligence on the part of doctors, medical professionals, nurses, dentists etc.
There is no equivalent to the Personal Injury Assessment Board (PIAB) established in Ireland. In the United Kingdom the method for obtaining compensation remains with the Court.
The Courts procedures were significantly reformed with the 1999 Civil Procedure Rules so as to as pursue the objective of a costly effective proportionate and smoothly functioning Court system.
As in Ireland an injury or property damage claim is often based on negligence or breach of duty. This is to say the party being claimed against will usually be at fault. In practice an insurance company will usually stand behind the other driver, employer, business etc. which will indemnify the party concerned for any compensation it has to pay and the costs involved.
It is the general principle of law in negligence that an individual is obliged to take care to ensure that nothing he/she does not cause monetary or physical property damage to a third party. Failure to take due care will leave the defendant concerned liable.
There are usually two elements to claim namely liability and quantum. Liability refers to whether the requisite degree of fault or breach of duty has been established. Quantum relates to the amount of damages. Once some element of breach or duty or fault is proved compensation for the amount of damages suffered will usually follow.
In circumstances where contributory negligence is involved, the award of damages is reduced proportionately.
Establishing Liability and Quantum
Negligence in road traffic claims often be clear under road traffic rules and a common sense approach to the facts. It may be apparent whose fault has caused the claim.
In employer’s, public and product liability claims the duties will tend to be stricter. If an accident occurs at work it will usually be attributable to some breach of common law duties in relation to work safety or breach of the detailed Health & Safety Rules.
Medical evidence will usually be necessary where personal injuries are involved. There are a huge number of experts in existence in relation to all aspects of personal injuries. They range from consultant engineers who give evidence in relation to cases to orthopaedic and other consultants who give opinions on the seriousness of injuries.
Many negligence claims arise from personal injuries caused by an accident on the roads or at work. The claimant who has been injured might be a pedestrian, passenger or driver. An employer may be sued on the basis of negligence or breach of statutory duties such as under Health & Safety legislation. As in Ireland, an employer is liable for the acts of his employees so that he may be liable for their actions.
Road users have a duty of care to avoid causing injury to others that may be reasonably anticipated to be injured by their actions or failure to act. The standard of care is that of an ordinary skilful and careful driver. Whether or not there has been a breach of this duty will depend on particular facts. It is up to the Court to decide whether there has been a breach of the duty to take reasonable care. In “trying” or deciding this question the Courts will look at relevant legislation such as Road Traffic Acts.
Highway authorities (usually the Local Authority) have a duty to maintain the highway. This includes a duty to repair and maintain it. The highway authority will be in breach of its duty if the road is in such condition as to be dangerous to road users. Liability for claims by members of the public tripping on pavements will depend on the facts.
Time Limits for Action
As in Ireland there are periods of time in which legal action must be commenced or it will be too late. Generally, there are six years to commence legal action for contract or breach of agreement claims.
In civil claims for personal injury claims the period is three years. This runs from the date of accrual of the cause of action or knowledge, whichever is later. The date of knowledge is where the claimant had knowledge and could reasonable have ascertained (with or without the help of expert advice) such facts so as to have knowledge:
- that the injury in question was significant; and
- that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
- the identity of the defendant; and
- if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
The court may allow an action to proceed despite the expiry of the time limitif it would be equitable to do so, taking into account particularly:
- potential prejudice to the claimant and defendant;
- length of delay and reasons for delay;
- extent to which the evidence is likely to be less cogent;
- conduct of the defendant in responding to requests for information, etc.;
- extent to which the claimant acted promptly
As in Ireland a child or person under a limitation of capacity such as person of unsound mind gets extra time to commence proceedings. It is possible for a contract to specify a much lower time in which to take actions and this will normally be valid. This can be crucial in dealing with commercial claims.
