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Contract Claims
In most contract claims, it is difficult to give guidance
without having full details and sight of the contract which is
said to have been breached.
The general principle is that where there is a breach of
contract by one party to the contract, and the innocent party
has suffered some ascertainable loss, this will normally be
recoverable from the breaching party as “damages”.
In contract, in addition to losses arising directly from
the breach, the innocent party is entitled to recover what is
known as his “expectation interest”. This means that the
non-breaching party is entitled to recover his expectation of a
benefit he would have obtained had the contract been performed.
These include losses that occur as a consequence of the breach,
provided they flow naturally from the breach.
You should therefore start with loss. What loss have you
suffered and how has it come about? Is the party you are
claiming from in breach of the contract? Please also note, in
contractual situations where you enter into the contract as a
consumer, the law implies certain contractual conditions into
the contract, such as fitness for purpose and quality of the
goods or services. Many consumer contracts will not be in
writing but will be oral contracts. Contrary to popular belief,
oral contracts have as much force as written contracts, although
the court will normally have to determine by examining
pre-contract representations, etc the exact terms of the
contract.
Concurrent Liability
In many case, the Claimant will have a cause of action both
in contract and in tort. This is common in professional
negligence claims, where there is normally a contractual
relationship with the professional but that professional also
owes his client a duty of care. It is normal to bring such
claims concurrently in both contract and tort.
It
is not
always the case that parties have a direct contractual
relationship. For instance, where an individual, through no
fault of their own, suffers personal injury, it is not usually
the case that there is any direct contractual relationship
between the party who has caused the injury and the victim.
However, an established principle of English Law requires us to
take care of our “neighbours”. |
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Tortious Claims
In law a neighbour means anyone in our reasonable
contemplation who may suffer loss as a consequence of our
actions. One species of tortious claim is in negligence, as in
the personal injury example although there may be other duties
imposed by Statute Law. Another species of tortious claim is
nuisance. In tort, the injured party is not entitled to recover
many forms of consequential loss and as a matter of policy, pure
economic loss is not recoverable.
Again, you
should start with loss to determine if you have a claim. We can
guide you as to whether your loss is recoverable.
Limitation
The law tries to balance the interest of claimants and
defendants and seeks to be fair. One way that the law does this
is to ensure that there is a cut-off point in time, beyond which
a party cannot bring a claim. This is because it would be unfair
to a Defendant to have a claim hanging over him indefinitely.
In both contract and tort, the limitation period expires 6
years after the date upon which the cause of action accrues.
In contract, the cause of action accrues on the date of breach,
whereas in tort, the cause of action accrues on the date that
the Claimant suffers actual damage.
The main consequence of this distinction is that the
limitation period in tort is usually longer than the Limitation
Period in contract, which is of particular relevance in
professional negligence claims, where the breach of contract
often only comes to light after the contractual limitation
period has expired. It therefore has the effect of extending the
Limitation period for Claimants.
The case law concerning tortious limitation is complex and
Claimants should generally instruct specialist solicitors as
soon as they become aware of a potential claim and within the 6
year period.
In personal injury cases, subject to certain exceptions,
the normal limitation period is 3 years from the date the cause
of action accrued and Claimants should therefore instruct
solicitors within 3 years of the accident to ensure that
proceedings are issued before the expiry of the limitation
period when the claim will be statute-barred.
For more information, contact
us on: 029 20 660157 or email us at
enquiries@churchgatelegal.co.uk.
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