The law of contracts examines legal principles regarding enforceable bargains. Since agreements among parties in any court case involve promises, this law determines which promises can be enforced in a court of law. Civil procedure 'on the other hand' entails the language, complex rules and structure that govern the American civil justice system, also encompassing specific details of trials and appeals (www.lawpreview.com).
This coursework is about Mr. Brown who obtained legal services from his solicitor on the agreement that the solicitor’s payment would be a share of damages for personal injury that Mr. Brown will recover if he wins the case. Mr. Brown eventually wins the case, but is now unhappy since the solicitor stands to gain a significant sum from the damages recovered. The following, therefore, is my advice to Mr. Brown, and a number of situations where the detailed assessment of costs, instead of the summary assessment of costs should be used, and the disclosure documents given to a paying party during proceedings of detailed assessment.
According to www.expertlaw.com, the major idea of a contract is to formalize a type of an a agreement between two or more parties as regards a particular subject. Every day, contracts are drafted and agreed upon by parties to a wide range of issues like a real property or goods sale, dispute settlement, intellectual property ownership and the terms of employment of a worker. In order for a contract to be enforceable, it must consist of certain elements including:
Mutual consent. The parties must have a mutual understanding regarding what the contract covers.Offer and acceptance. The contract must an involve a party making an offer to another party willing to accept it. Any counter- offer made after that is not considered an acceptance and is thus treated as the second party’s rejection of the first party’s offer.
Mutual consideration. For the contract to be valid, parties to it must exchange something that is of value to them.
Performance. For the contract to be enforceable, the agreed conditions have to be met; there must be delivery of the action by it.
Good faith. All parties to the contract must act in good faith, with the best interests of the other party at heart, at least for as long as the contract is binding.
In view of the above, therefore, Mr. Brown’s contract with his solicitor is legally binding since it encompasses all elements of a legally recognized contract. There was mutual consent on what the contract would cover, in this case, Mr. Brown’s pursuit for damages on injuries suffered; an accepted offer, Mr. Brown offered his solicitor a share of his payment for damages; mutual consideration and good faith, at least at the time that the contract was being drafted. The only remaining aspect of the contract is performance, with Mr. Brown wanting to pull out of it now that the court case has been won, after re- considering the legal fees he is liable to pay.
Oral contracts, in the legal field, are not considered legally binding since proving that they exist is next to impossible. According to The Law of Contracts (Calamari, et al 1998), parties engaged in an oral contract may be unable to enforce it and one party could stand to gain immensely at the expense of the other, and unfairly so, thus, an oral contract is only enforceable if there was an impartial and reliable witness to it. It is therefore extremely necessary for certain documents to be present during the signing of any contract.
Dispute.practicallaw.com defines detailed assessment as the assessment of the costs incurred by a party, usually at the end of court proceedings. In doing detailed assessment, the amount payable by one party to another is determined by a costs officer in accordance with CPR 47. Under CPR 47.1, a court can order that a detailed assessment be carried out before the proceedings are concluded. Any disagreements in a detailed assessment are required to be served within twenty one days of receiving notice of the beginning of the assessment. The accompanying documents should also be included. Any responses to the points of dispute are also supposed to be served within twenty one days of receiving the served points of dispute. The court then gives the parties involved a 14 days notice while it lists a detailed assessment hearing. Afterwards, a completed bill of costs is filed 14 days following the detailed assessment hearing.
The solicitor is required to give the client sufficient information regarding the whole detailed assessment process. Disclosure documents given to a paying party during detailed assessment proceedings include:
Points of dispute documents after it is served within 21 days of receiving notice of the beginning of an assessment.
Replies to the points of dispute documents served within twenty one days of receiving the served points of dispute.
A request for a detailed assessment hearing made within three months before the end of the period when the detailed assessment should commence.
Fourteen days notice document given by the court while listing a detailed assessment hearing.
A completed bill of costs, filed fourteen days after the date of the detailed assessment hearing.
Www.lawdit. Co.uk defines summary assessment as a short assessment of the party’s costs. Considered the proper way of avoiding delays and costs associated with a detailed assessment (Armstrong 2002), the summary assessment has to be agreed upon by the parties involved.
There are a number of exceptional circumstances under which detailed assessment of costs, rather than summary assessment of costs should be ordered. These include:
• When the amount payable to the solicitor is based on the amount their client is likely to gain from the court case in question.
• When a claimant equals or betters their offer at a trial.
• If a claimant rejects the defendant’s offer to settle.
• If the claimant fails to improve their offer at trial.
• If an application is filed by the client to extend time limits of payment to the solicitor.
• If there is a failure by the defendant to respond to a notice to pay the receiving party within a certain time frame.
In view of the above, it is clear that Mr. Brown made a mistake by going for the summary assessment of costs rather than the detailed assessment of costs. I would therefore advise him to begin by filing points of dispute with the law court, thus beginning the process of detailed assessment of costs. He should then proceed with all the steps required, up to when the bill of costs will be drafted by the costs officer, and thereafter pay up as will be required by law. It will also be necessary for him to maintain good and cordial working relations with his solicitor, bearing in mind the fact that bad blood between them could lead to long, drawn- out court cases that would eventually result in his loss of the money gained from the damages acquired. He therefore needs to proceed with caution and follow all legal channels available to him.
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