One of the key mistakes often made by the unwary, when a dispute gets to a point where legal proceedings are needed, is to limit claims or defences.
Put simply, if you don’t ask, you don’t get. However, this requires thought and sometimes some experienced legal help in practice.
Breach of contract and negligence ?
Taking a fairly straightforward example – you instruct a lawyer to prepare a contract for you and the contract doesn’t reflect what you asked for or misses some obviously important clauses. Straight away you may recognise what you believe to be negligence but don’t forget also that it’s a breach of contract – if you need to start legal proceedings you will need to formally plead in your claim form allegations of negligence and breach of contract. the legal tests and remedies for these 2 types of claim are different, as are then remedies.
When preparing a legal pleading, such as your particulars of claim, in addition to getting the right areas of law, you will need to provide sufficient basic facts to make the allegation – it’s not enough just to say that you are claiming breach of contract or negligence, you need to at least have enough basic facts, and to set those facts out, to make out an initial case to be admitted or rebutted.
Claiming on a “belt and braces” basis means that you have several possibilities to succeed – you may not succeed, in the above example, with a negligence allegation, but you might succeed with breach of contract. You might succeed with both. Claiming in the alternative is not generally a sign of weakness in your primary case and should always be considered.
Remember also though that there are limits to the above. In some types of cases, you may have the option of making allegations under a significant number of legal heads of claim. Claiming for everything under the sun that might have a legal label is rarely, if ever, a good idea.
More then one legal remedy ?
As well as getting the right “legal labels” for allegations, claimants also need to consider, at the outset, the appropriate remedies that ought to be sought.
A good example of the above is an application for an injunction. The nature of an injunction is asking the court to make a draconian order, generally before legal proceedings have even been issued, and in circumstances where evidence has not been tested and the claim seeking the injunction is often asking the court to order the other party to hand over evidence. Courts do not grant injunctions easily, for obvious reasons, so before applying, it is imperative to get your act together and carefully consider what you are asking for.
A case from this year, where an injunction was applied for in the fairly common scenario where former employees were alleged to be trying to set up in competition, with unlawfully obtained data, is a good example of the challenges facing an applicant and the degree of thoroughness, investigation and planning which are important before applying for an injunction.
The case was widely reported and commented on because one of the orders sought, and obtained, related to control of a social media account, in this case Linked In. Social media accounts and online activity are now the source of complex and difficult risks and difficulties in legal terms.
The case is also useful, as in the Judgment, the learned Judge recited the basis of remedy claims by the Applicant. these were as follows :-
- an injunction to restrain the use of its confidential information.
- delivery up of its confidential information.
- a limited forensic inspection of the Defendants’ computer systems.
- protection of its database rights.
- affidavits giving particulars of the wrongful activities of the Defendants.
Items 2 and 3 are of particular note – the Judge, in the Judgment, has summarised the heads of claim, and that;s useful to demonstrate my point that the applicant, or his, her or it’s advisors would have made a huge mistake just asking for a restraining order in a situation like this. However, when making then injunction application, I am sure that it would have needed to be very specific about the confidential information the applicant was seeking an order should be delivered up and the so-called “limited” forensic inspection would also have needed to be clarified. With the myriad ways now that data can be copied and kept on different devices, this can prove very problematic. In short, before applying for this sort of injunction, you generally already need advice and evidence from a forensic computer specialist and the terms of the order sought need to be very carefully considered. In many cases, the role of an expert, once an order is made, is not just about finding whether data is still on a particular computer of device but more so, whether and when it has been copied so it is then moved onto other devices and so on.
Get in touch if you need advice on starting a claim or claiming an injunction. We specialise in employment law related injunctions. Please contact David Rosen also for other forms of commercial dispute or fraud related injunctions.
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