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Classifying Remedies And Who To Sue Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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CLASSIFYING REMEDIES a) Compensatory remedies - compensate C for loss

? e.g. damages - if D fails to pay, various enforcement methods
? C usually gets costs too (not part of damages) b) Coercive remedies - prevent harm occurring/re-occurring

? injunction
? Specialised orders e.g. specific performance of a contract
? Failure to obey order is contempt of court ? fine and/or prison and/or sequestration of assets c) Declaratory remedies - interpret documents ad resolve disputes about parties' rights

? declaration i. preventative - resolve before parties take steps based on (false) view of matter ii. indirectly 'coercive' - declaration puts parties on notice of legal interpretation of matter; if parties act contrary to that interpretation ? compensation + possible injunction d) Exemplary or punitive remedies - punish offending party for deliberate/grave acts

? order for exemplary/punitive damages - penalise D via civil (rather than criminal) litigation Legal remedies - e.g. damages Equitable remedies - e.g. injunction, specific performance - only awarded if legal remedy inadequate

WHO TO SUE LEGAL PERSONALITY - determine legal status of both C and D

? Individuals - same/different legal status?
? Groups1. determine if

o trust o corporation o unincorporated association2.

o a. any limits on capacity?
o b. who can bind the group i.e. how do rules of agency apply to type of legal status?

? Determine roles of settlor, trustees, beneficiaries e.g. if acting for trust, is action in trustees' power / in line with terms of trust?

Corporation - legal person separate from its members

? Formed by:Royal CharterStatuteunder Companies Acts as private/public company

? Who has legal authority to act on behalf of corporation?
Unincorporated associations - no legal personality separate from members ? 1 member liable for acts of another

? trade unions / employers' associations
? (proprietary / members') clubs
? partnerships BUSINESS ASSOCIATIONS - incorporation for trade purposes

? sole trader - individual trades in own name
? partnership - 'the relation which subsists between persons carrying on a business in common with a view of profit' (s1(1) Partnership Act 1980)

? company - registered under Companies Act 2006 (into force 1 Oct 2009; incorporated/restated CA 1985 and codified case law) Formation Sole Traders

? no formalities to set up
? personality of trader indistinguishable in law from individual (except for accounting purposes re: personal assets and assets owned by business)

? business debts unlimited liability of sole trader Partnerships

? no formalities to form, but must satisfy s1(1) Partnership Act 1980 and be lawful business
? Limited Liability Partnerships Act 2000 (IF 6 April 2001)
? limited liability partnershipscf formalities for company - law for partnerships does NOT apply / law for companies DOESliability of partnership unlimited / liability of individual partners limited to obligation to contribute to assets on winding up

o + limited liability o - obligatory disclosure of info


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