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BPTC Law Notes Opinion Notes

Opinion On Liability Contract Notes

Updated Opinion On Liability Contract Notes

Opinion Notes

Opinion

Approximately 56 pages

These are the notes I walked into the Opinion Exam with. They are suited for any opinion relating to misrepresentation. However, they give a good example of the sort of notes you can have walking into an exam and how you can prepare for the exam before having seen it. I found myself copying huge chunks of this script in the exam and got an outstanding.

These notes also give an idea of how you can structure your opinion and how you can successfully prepare for these exams before knowing what t...

The following is a more accessible plain text extract of the PDF sample above, taken from our Opinion Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

IN THE PROPOSED CLAIM

BETWEEEN:

Mr MARK PEMBERTON

Proposed Claimant

-and-

Mr GEOFF SHORT

Proposed Defendant

_________________________________________________________________________

OPINION ON LIABILITY

_________________________________________________________________________

INTRODUCTION

  1. I am instructed to advise Mr Pemberton on the merits of a claim he wishes to pursue against Mr Short arising out of a contractual dispute. I am specifically asked to advise on whether Mr Pemberton will be likely to succeed in his claim for breach of contract and whether he will be liable to pay the amount outstanding on the contract price. This advice is prepared on the basis of my instructions which enclose the evidence here referenced. Further evidence has been requested and, where specified, my advice is given subject to its provision.

SUMMARY OF THE FACTS

  1. On 2nd March 2015 Mr Pemberton began formal discussions with Mr Short concerning renovation works at his property known as “Prandergast” in Windmill Lane, Ockhurst, Surrey. Mr Pemberton says that he outlined requirements for the doors and windows to be replaced with Georgian-style hardwood units, and described how the sightlines of these units should ‘line-through’ each elevation of the house. Mr Short required more time to devise a design and so discussions recommenced on 7th April 2015 at Mr Pemberton’s behest. On this date Mr Short produced a design of the units which Mr Pemberton says he approved. He also showed Mr Pemberton hardwood samples out of which Mr Pemberton chose a mahogany hardwood, against Mr Short’s recommendation. On 10th April Mr Pemberton agreed to install ‘transom windows’ above the internal doors following a telephone call from Mr Short. The written quotation was produced and dated 14th April, and provided for 20 hardwood units to be designed, supplied and installed at the property, as well as door fittings previously agreed upon, for a total price of 80,000 plus VAT. This quotation was accepted on 17th April over the telephone, and parties agreed to an instalment payment structure so that 50% was paid up front, and 50% to be paid upon completion. Mr Short began work on 6th July 2015. Mr Pemberton went abroad and returned to the property on 10th July, to find that works had been completed. However Mr Pemberton says that he found, firstly, visibly misaligned at the property and, secondly, internal doors which were too low for him to gain access. Upon further inspection he says he discovered work to be sub-standard and that the hardwood purchased was not the material found in the units.

SUMMARY OF ADVICE

  1. At this stage Mr Pemberton appears to have a strong case in breach of contract in relation to reasonable care and skill when installing the windows and doors. On the present evidence, the express term relating to equal sightlines will be disputed as an absolute term of the contract. Further evidence establishing agreement of the term and evidence showing failure by lack of care will be persuasive. The implied term relating to door height is also open to rebuttal by Mr Short on the ground that there was express agreement between parties, though it is advised that this rebuttal looks weak at present. If Mr Pemberton’s position on either of these terms is strengthened, establishing repudiation will be more straightforward and it will be unlikely that he will have to pay the outstanding sum owed on the contract.

LIABILITY

CONTRACT FORMATION

  1. There seems to be no dispute between parties that a valid oral contract was formed on 17th April 2015 for renovation work to be carried out in return for a fixed fee of 80,000, to be paid in two instalments. The quotation provided by those instructing me makes reference to the three previous conversations held on 2nd March, 7th and 10th April 2015 and this is consistent with Mr Pemberton’s recollection. The oral contract is evidenced by the sketch and photo of 2nd March 2015 and the transom window sketch of 10th April 2015. However the exact content of the oral agreement is not established on the evidence, and this will likely be a matter in dispute regarding terms, below. Therefore those instructing me should seek to find out if anyone was witness to any of the discussions referenced above, and if so if they would be prepared to give witness statements.

TERMS OF THE CONTRACT

Express Terms

  1. The terms relating to price, payment process, dates and door fittings are not in dispute.

  2. The term specifying hardwood, and specifically mahogany, as the material to be used for the units will need to be established. It is not a term contained in the written quotation of 14th April 2015, and Mr Pemberton states that its source is the discussion of 7th April 2015. It is therefore vulnerable to the typical difficulties of oral agreement and statements of any witnesses would, if possible, prove useful. Further if Mr Pemberton has any of the samples shown to him on the 7th April he should retain them. Nonetheless the term is not likely to be a cause of difficulty as it stands, as it appears from my instructions that Mr Short is contending he did in fact provide mahogany hardwood. It is also the case that the contract price is consistent with hardwood as confirmed by Mr Miller of A1 Glazing.

  3. The most hotly disputed express term of the contract will concern the equal sightlines provision. This, too, is not contained in the quotation and Mr Pemberton says that its basis is in discussions on 2nd March 2015. He says that he informed Mr Short that equal sightlines were an “essential requirement” which, if proved, constitutes a significant breach on his part. The sketch diagram provided by Mr Pemberton is, in my opinion, clear on the requirements and the photograph provided is strong. However Mr Short is likely to argue that an absolute sightlines requirement never became a term of the contract on the basis that he felt perfect symmetry was unachievable. It might be argued that parties agreed on the...

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