Breach of Contract and Remedies Essay
Breach of Contract and Remedies
For the injured party within a breached contract to claim for remedies whether it was agreed on at the time of writing the contract or an decided at a later time, both the injured party and the other party (e.g. a business and a customer) will have to go to court to decide what kind of remedy will occur to the injured party fairly to the proportion to the damaged done.
There would be cases where without the courts present when there has been a breach of contract, injured party may claim more than the total damaged done or may receive insufficient amount compared to the damaged occurred. To avoid this, the case will be given in court to ensure that based on the breach of contract and the damaged occurred it could be an unbiased solution and done fairly up to satisfactory. Depending on the type of cases of the breached contract, there are three main civil courts where both parties can hear their cases which are the Small Claims court, the County Court and the High Court. For example if T-Mobile and a customer where in a dispute of the breach of contract, they would apply for a court hearing where the case will give to a judge who will be a case manager for T-Mobile and the customer.
Depending on the seriousness and the remedy or the amount the injured party can claim, the case manager will allocate and place the case to the appropriate court to carry out this case. If the dispute were between T-Mobile and an individual customer may be assigned to Small Court as they deal with small claims cases. If the dispute was with T-Mobile and a business, it may be assigned to a County Court as the claims would be higher than Small Courts.
If it was with T-Mobile and a multi-million business or a manufacturer / supplier, it may be assigned to a High Court where complex cases are looked into. At the time of breach of contract, whether there has been a remedy within the contract agreed upon or not, the injured party will be able to take this case to court to be able get a better remedy sentenced given by the Judge from T-Mobile. When there is a breach of contract, the injured party will be compensated for the damaged caused.
Small claims court
Out of the three types of court, Small Claim is smaller and is part of the County Court. The Small Claim court will usually deal with smaller or less important claims which include contractual and business disputes. The business that usually goes to the Small Claim courts are to claim from failure for supplying goods and services that does not exceed or go above £5,000. As these types of claims are usually common, it will be easy for the judge to make a clear decision simply based on the case put forward without the need of seeing the documents. As it is clear for decision to be finalised only legal advice may be given but not encouraged to have representative present in court. Also payment for legal help is not allowed, this could be because the Small Claim court will have a quick and efficient case being closed which means that it could reduce the parties cost in court. For example, if there were a dispute between T-Mobile and a customer and maybe T-Mobile may have not supplied a service to the customers several days although the customer has recently paid for the service.
The customer will be able to claim for damages. Since for T-Mobile this dispute could be considered a small amount as they are a big and well known business worldwide, they are able to have this dispute finalised at the Small Claim court where the customer would be able to claim for damages. Knowingly T-Mobile would not be paying more than £5,000. Depending on the claims and damages occurred to the injured party, T-Mobile may not lose as much money that could impact their profit margins on a monthly basis nationwide. When a customer is the injured party and the case has gone to a Small Claim Court, the customer may not benefit as the judge may have made up their mind of the remedy given to the injured party. This may not give the injured party a chance to be able to speak out or give their input about the severity of the breach of contract cause by T-Mobile.
As a legal representative may not be present or speak on behalf of the injured party, the customer will need to accept the remedy declared by the judge given by T-Mobile. It may not be what the injured party wanted but may need to accept. T-Mobile will be forced to give the remedy even it was agreed upon within the contract. For example, the injured party (party) may have expected to receive cash for the damaged caused but the judge may allow T-Mobile to give a contract of choice without the need of payment from the customer. This may benefit T-Mobile more than the injured party as the amount of remedy may be limited and only the gathering of the documents given to the judge will be able to make a decision of the remedy given to the injured party. The remedy that may be given could be cash back to the injured party as T-Mobile may have charged them for unwanted services. Or it could be a small fine to T-Mobile for not giving the cash back in the first place to resolve this dispute such as unliquidated damage as a remedy to the injured party.
This type of court will deal with bigger cases, a fast track case where it is worth between £5,000 to £15,000. The difference between County court and Small claim court is that the County court will have a jurisdiction involved to hear people’s cases in court. The County Court will deal with larger cases such as recovery of land, bankruptcies, company wind up, consumer’s credit and copyright matters. Compared to the Small Claim Court, the County Court is more formal and cases will be heard by a circuit judge who acts as a senior judge who will make decision on the case. Also they will be able to have a legal representation to have the parties have their cases represented to the judge. As well as the small claim court, help and advice will be available from the court and also will allow a person to claim against another. For example if T-Mobile were to be in dispute with another business causing more than £5,000 of damages for not meeting the business needs for supplying services such as being their internet provider. This could be part of company wind up for T-Mobile.
As another business is a client of T-Mobile, T-Mobile has not been able to meet the term of the agreement or has caused a breach of contract. The damage cause will be far too great to be dealt with in the Small Claim Court and may need to be dealt in a County Court where both parties will have a legal representation to present their cases to the Circuit Judge. If the judge reviews the case and conclude that T-Mobile were not able to keep to their agreement, the judge would be able to decide the penalty and the amount of damages the business will be able to claim. The County Court will allow the injured party to have a legal representation. This means that for the customer will be able to have a written report or have the legal representative empathise more on the damaged caused by T-Mobile. If the injured party is able to get more than they expect for remedy, this could benefit the injured party than T-Mobile.
However the type of customer that will be taken to the County Court may need to fulfil some criteria to be able to be eligible to be in the County Court. This could be the depending on the amount of damaged caused or the type of customer that could be more significant than an individual person in a mobile contract with T-Mobile. To be in the County Court, the injured party or the damaged cause may need to be significant for additional documents and a legal representation to be present to give their case to the judge.
As County Court is greater than Small Claim Court, the remedy that may need to be given to the injured party would be greater, this could mean a larger fine to T-Mobile than the fine in Small Claim Court. The fine would be greater because the product or service to the injured party would have been significant and the damaged cause would have lead to be dealt with in a County Court for example supplying a faulty machinery that should have been sophisticated and be robust from malfunctions. Remedy such as unliquidated damages may occur.
In the UK, High Court is the most senior of the first instance civil court; this is where many cases are dealt with if it is a high priority or a sensitive case. The High Court is divided into three divisions which are the Queen’s Bench Division, The Chancery Division and The Family Division. The Queen’s Bench Division is a part of the High court that takes and hears multi-track contract cases. These cases usually consist of involving and dealing with large sum of money or complex point of law. The Queen’s Bench Division will deal with business matters which makes it act as a Commercial Court dealing with matters such as insurance, banking etc. They will also hear civil appeals from the County Court. The Chancery Division is another part of the High Court that deals with the financial matters of equity and fairness such as taxation, bankruptcies, mortgages etc.
The Family Division will deal with the family law such taking and dealing with cases such as divorce and adoption. The Family Division may have a little role when it comes to cases of business matters. For example if T-Mobile was in a contract or agreement with a large business or supplier and there has been a breach of contract and the damage was too great to be dealt with in the County Court, then it may need to go to the High Court. If the matters were to involve large sum of money, they will need to go to the Queen’s Bench Division. As they may have been negligence on T-Mobile behalf, the Queen’s Bench Division will be able to oversee the case and conclude the damage the injured party will be able to claim and fine the party that carried out the damages. If T-Mobile was working with a third party to supplier many of their products to in order to expand their coverage of sales and T-Mobile may have not been able to meet some of the terms of the contract which may have led to the third party to break promises and be in a position of distress. It may be liable to T-Mobile where large of money has been lost or have not been cleared out on T-Mobile behalf.
This case may have been dealt with in the Queen’s Bench Division of the High Court. The High Court is such a prestigious court this means that for a T-Mobile case to occur there, the case may need to be important and greater than the case in County Court. As the importance of the case will be significant this will mean that normal customer may not be in the High Court unless other aspect that is a serious matter is involved possible relating to other organisation or international matters. This could usually be between business to business. As businesses have a lot more to lose than an individual customer of T-Mobile, the dispute may need to solved in the high court where the case could last for a few days. When there is a breach of contract between business, the injured party will be able to sue T-Mobile and this could be in huge numbers.
T-Mobile customer that walk in to their store a sign a contract may not be eligible for a High court case rather business to business that are both well known in the media whether it is domestic or international, a breach of contract may disrupt the service of both business until the dispute has been resolved. As the case would be in a High court, the damaged caused to the injured would be significant to be dealt with in a County Court where millions of pounds of damaged could have occurred. This could show that the remedy given would be much more significant. This could be a huge fine to the injurer party (T-Mobile) however is certain cases the judge may issue an injunction or specific performance as a remedy to the injured party.
When there is a breach of contract between two parties, the injured party will be allowed to claim for a remedy however, the claim of a remedy has a time limit. The Legislation Act 1980 has made it clear for the claim of remedy to have a time limit. This means that once a dispute has occurred between the two parties caused by the breach of contract, the injured party will have a time limit of 6 years to be able to claim the remedy. In certain situation, such as the sale of land will have a time limit of 12 years of breach to be able to claim for remedy. There may be certain circumstances where the time limit to claim for remedy may extend if fraud has been involved within the breach of contract or the party claiming has a disability of lack capacity. In the case of T-Mobile, if there was a dispute to occur where T-Mobile may have not fulfil its duty to provide a service, in the Terms and Condition it states that it is up to the customer or consumer to tell T-Mobile about the damaged caused and the claim that will be carried out as soon as possible.
Although the Legislation Act says up to 6 years. Under the Data Protection Act, T-Mobile may not have the details or the information of the customer if they have previously terminated the contract and discarded the details of the customer. This could prove to be difficult for the customer to claim for remedy if there is no evidence to back up the breach of contract. I think that at the time of breach of contract whether if the customer check their phone bill and has been charged outrageous amount or charging the customer for service they did not agree to at the time of writing the contract, the customer may notify T-Mobile immediately about this incident.
If the case has not been solved, this may be taken to a Small Claim court where the decision will be made swiftly and fair for both parties, if not to the injured party. With contract with retail customer, the dispute would have been resolved efficiently without the need of a court hearing to settle the dispute, this can show that with minor incidents the Legislation Act 1980 for the time limit may not be needed. However if the breach of contract were to be between T-Mobile and another business and the dispute has not been resolved within the time limit of 6 years, then the injured party will be able to bring up the case to the court to be resolved if it has been bought up within 6 year to be resolved.
In a presence of a breach of contract between T-Mobile and another party, based on the amount of damaged caused the case may be able to go to one of the three courts which are Small Claim Court, County Court or the High Court. With T-Mobile making different contract whether it is standard form contracts or tailored to be in an agreement between both parties, T-Mobile may go to any of these courts depending on the severity of the damaged occurred at the time of breach of contract. Along with these court different remedy may be given to the injured party for example, unliquidated damage, injection or specific performance carried out. If T-Mobile were to use standard form contract, the terms and condition would be generic for all of their customers that have agreed to the terms which could mean that it may be easier or simpler for T-Mobile not to breach the contracts as they were the company that have created it in order to fit their purpose as a business.
Also T-Mobile will need to consider all of the legislation acts such as the Sales of Goods Act, Contract (right of Third Parties) Act or The Consumer Protection (Distance selling) Regulation which will be enforced on to T-Mobile to follow in order to continue trading within the UK. This could also include T-Mobile not to make sure that within the contract has a misrepresentation which could cause serious harm to the company if it were to be found out during the breach of contract.
The judge may be able to place serious offence on to T-Mobile as it could lead to a criminal offence to the business which could result of the company or person within the management to take blame of this incident which may have caused many customers to agree to a term that may have cause certain damage to them. Many businesses will need to make sure that when creating a contract with many different parties, they are able to create terms and condition or promises to one another in order to carry out once there has been an agreement to it as once the contract has been agreed on, and it will be legally binding. Both express and implied terms would be included to create a set of promises and remedies stated if there occurred a breach of contract.