Pre-action considerations and steps - Parties and causes of action

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Overview

For those preparing for the SQE1 FLK1 exam, a solid comprehension of pre-action considerations is key for future solicitors. This area is vital for developing effective litigation strategies, especially in handling civil procedures. Initial steps, taken before formal court proceedings, involve significant decisions that can greatly influence a case's outcome. A firm understanding of these concepts is essential not only for exams but also for responsible legal practice.

Identifying Parties to the Litigation

Correctly identifying and naming parties in litigation is essential for success. Mistakes can lead to delays, wasted resources, or even case dismissal.

Identifying Defendants

Individuals

  • Use the full legal name for accuracy.
  • Include any trade or other names to prevent errors.

Sole Traders

  • Mention both the personal and business names. For instance, "John Smith trading as Smith's Bakery."

Companies

  • Use the official registered name listed in databases like Companies House.
  • Check the company's status; address any issues, such as dissolutions, correctly.

Complex Party Structures

  • For trusts, decide whether to sue trustees individually or the trust entity based on circumstances.
  • In estate cases, determine the role of executors or administrators.

Locating the Defendant

Once identified, serving legal documents is essential. Methods include:

  • Public records such as Companies House or social media
  • Hiring inquiry agents
  • Seeking court assistance if necessary

Defining Causes of Action

A well-defined cause of action outlines the legal basis of a claim and the relief sought.

Elements of a Cause of Action

Successful claims generally establish:

  1. A legal right
  2. A duty owed
  3. A breach of duty
  4. Causation
  5. Damages

Common Causes of Action

Contractual Disputes

Arising from unmet obligations in a contract, such as:

  • Breach of contract
  • Misrepresentation
  • Failure to complete payments

Negligence (Tort)

Involves harm due to lack of reasonable care, including:

  • Medical negligence
  • Product liability
  • Traffic accidents

Concurrent Causes of Action

A single scenario might lead to multiple claims, like a defective product resulting in both contract and tort claims.

Pre-action Protocols and Limitation Periods

Pre-action Protocols

These guidelines encourage resolving disputes early and avoiding litigation.

Key Aspects

  1. Encourage out-of-court settlements
  2. Avoid costs and delays for non-compliance
  3. Initial step: a detailed letter of claim
  4. Expect a timely response from the defendant
  5. Exchange relevant documents to clarify issues

Specific Protocols

Different types of claims have tailored protocols, such as:

  • Personal Injury
  • Professional Negligence
  • Construction Disputes
  • Defamation

Limitation Periods

These define deadlines for starting legal actions, important to avoid cases being "statute-barred."

Key Points

  • Contract Claims: Typically six years from the breach date.
  • Tort Claims: Usually six years from when the action arose. Exceptions include shorter periods in personal injury cases.
  • Discovery Rule: Periods might start from when the issue became apparent.

Exceptions

  • Disability: Periods are paused during a claimant's disability.
  • Fraud: Periods begin once fraud is discovered or could have been discovered.
  • Acknowledgment or Partial Payment: Actions that might restart limitation periods.

Examples and Applications

Case Study 1: Contractual Dispute

A business fails to deliver goods on time, causing financial loss.

  • Steps: Issue a claim letter detailing the breach and desired resolution.
  • Limitation: Six years from the breach.

Case Study 2: Negligence Claim

A contractor's poor workmanship leads to significant damage.

  • Steps: Send a claim letter detailing negligence and damages.
  • Limitation: Six years from when the damage was discovered.

Case Study 3: Professional Negligence

Negligent legal advice results in client loss.

  • Steps: Follow the specific protocol for professional negligence, with a detailed claim letter.
  • Limitation: Generally six years from the incident, subject to discovery rules.

Conclusion

Navigating pre-action considerations is vital for effective legal practice and success in the SQE1 FLK1 exam. Key areas to focus on include:

  1. Identifying and locating litigation parties
  2. Defining causes of action with necessary elements
  3. Following pre-action protocols to resolve disputes early
  4. Applying limitation periods appropriately
  5. Understanding the potential for multiple claims
  6. Applying these principles across various dispute types

Achieving proficiency in these pre-action steps lays a strong base for success in exams and future legal careers.