Litigation | Terry Gorry & Co. Solicitors

Unjust Enrichment and Quantum Meruit-Why You Should Know About This Equitable Principle

Have you ever heard of a latin phrase, “quantum meruit”?

You may be thinking that you have not, and you are none the worse for it, either.

However, this archaic latin phrase could become your friend some day if you are involved in a dispute about a contract you are a party to.

Let me explain.

Firstly, “quantum meruit” means “what he has earned” or “as much as he is entitled to”. It would arise where you claim you are entitled to be paid for goods or services supplied to the other party where you are not covered by the strict interpretation of the terms of the contract, or even where there is no contract.

It is said, therefore, to be a quasi-contractual claim.

Let’s say you have agreed some terms of a proposed contract, but you have not agreed on price. Nevertheless, you perform the contract with the implied or express agreement of the other party.

The other party cannot claim that because you did not agree on price that you are not entitled to be paid. No, you would be entitled to be paid on a “quantum meruit” basis-that is, as much as you have earned or deserve.

Another example would be where the other party has agreed to pay you a “reasonable sum” for the goods or services or where the extent of the work to be performed was agreed and set out in the original contract, but the work carried out has exceeded what was agreed.

A further example would be where you have exceeded the precise terms of the contract. This could arise in an employment situation, or in a typical building/construction situation where you go over and above what you were supposed to do and the other party allows you to do so and is happy to enjoy the extra benefit of your work or goods.

At its essence, therefore, a quantum meruit claim is based on a claim for a reasonable sum for the services rendered or goods supplied.

Quantum meruit is what you might be awarded arising from your claim based on the equitable principle of unjust enrichment-that is, you are claiming that the other party has been enriched at your expense and you are entitled to be paid in equity and good conscience.

What is unjust enrichment?

Unjust Enrichment

Broadly speaking there will be four elements to unjust enrichment:

You provided valuable goods or services to the other party
The other party accepts your goods or services and benefited from them
The other party was reasonably notified, or should have inferred, that you expected to be paid
It would be inequitable or unconscionable for the other party not to pay

What you will be entitled to, if you are successful in your legal proceedings, will be quantum meruit-that is, what is reasonable for your goods/services.

You will see from the above that unjust enrichment can arise

Where there is no contract
Where there is a contract, but its terms have been exceeded by one of the parties.

A useful decision in this area of law is Vedatech Corporation v Crystal Decisions (UK) Ltd. & Anor [2002] EWHC 818 (Ch) (21st May, 2002) [2002] EWHC 818 (Ch).

The circumstances where a claim of unjust enrichment can arise are myriad, and include employment, construction, and in all situations where goods or services are supplied.

How to Negotiate Anything-4 Stunningly Effective Tactics

Negotiating.

Haggling.

Some people, like my mother, love negotiating, and have done so all their life.

Some people, like my wife, hate haggling. I think people like this feel it is insulting to the other party. But often, the other party expects you to haggle or negotiate, and are ready for it. In fact, they have probably built the negotiation into their price to begin with.

Being able to negotiate effectively is a vital skill, one which can serve you in all walks of life-from your career to buying a car to buying other goods to buying property to negotiating in relationships/family etc.

As a solicitor, I have to negotiate often on behalf of clients, and I have made it my business to study the top negotiators to do the best job I can.

Do you want to discover how to negotiate effectively? That’s what I am going to take a look at in this piece, and by the end of it you will be in a far stronger position to negotiate anything.

Sounds good?

The Most Important Negotiation Tactic-Detachment

The single most important tip is not to care too much. If you do, and you make it blatantly obvious that you very badly want this car/house/suit/holiday, you weaken your negotiating position from the outset.

Because the other party knows how badly you want it. What you need to do is maintain an air of detachment-sure, you want the thing, but not that badly. You are ready to walk away if the deal is not right.

As soon as the other party things, “Jeez, this guy is going to walk away, he must have other options”, you are in a far stronger position.

And giving this impression is entirely within your control.

So, care, alright, but not too much.

Also, if and when you are walking away because the gap between you is too large, and the other party offers you his business card “in case you change your mind”, don’t take it. Reverse the balance of power by giving him your business card or contact details, and tell him, “give me a call if you change your mind”.

Remember, you don’t have to buy this car at this garage, you can buy a different car or not buy one at all. But you have the money, and he needs the sale.

There are two ways to ensure you don’t care too much:

Get someone else to negotiate for you
Recognise the difference between loving and liking-think about how you will feel in 20 years’ time about this thing you are trying to acquire. This will allow you to become more detached.

2. Maximize the Other Party’s Investment/Commitment

If you can get the other party to invest a lot of time in trying to win you over it puts you in a stronger position. Why?

Because they have already invested quite a lot in you. And we know that the more a person has invested in something the more desirable it becomes for them.

Let’s say you are buying a motor car, or indeed anything in retail, and you spend a lot of time at the car dealers, but don’t buy. The car salesman has invested quite a lot in you, yet has got no return whatsoever.

Then you go back another day, and spend even more time discussing the potential deal. The more time the car salesman spends on you the more reluctant he will be to see you walk off and go to another dealer. He is far more likely to cave after spending all this time, especially if he knows he has competition.

You will, of course, have told him you are looking at other cars in the competitor garage.

3. Start Friendly and Cooperative With an Air of Incompetence

If you start friendly and cooperative you can always get more aggressive and adopt a “tough guy” stance later on.

But if you start with the “tough guy” stance you will have no credibility later on when you try to be nice and friendly, and claim you misspoke.

If the other party starts aggressive, let them.

Take it, take notes because inside they are thinking “this is going to be easy” when, in fact, all they are doing is investing more time in you. Ultimately, this will make it harder for them to walk. They will be like someone investing a load of money into a slot machine and being encouraged to try another machine.

No way will they walk, because they have put too much into this machine and it must be due to payout.

You want to be more like the private investigator Columbo than Confucius, the Chinese teacher and philosopher.

If you appear to be incompetent, or inexperienced and say to the other party, “look, I’m new to this, you are extremely experienced and have been around a long time, maybe you could help me here” there is a good chance they will respond well to this approach.

4. Deadlines are Important but Negotiable

The vast majority of concessions and deals are done towards the end, near the deadline. Don’t be afraid to exploit this fact.

For example, you spend a good bit of time negotiating the purchase of an expensive piece of clothing. Just when the vendor is happy he has you on the hook, and you are now due to pull out the credit card, you say, “can’t you throw in a couple of ties?” You will have a great chance of getting the ties, or a few pairs of socks, or whatever is appropriate.

But deadlines are the product of negotiations, therefore are negotiable. However, the passing of a deadline can actually be the opening up of an opportunity.

How?

Ask, as they are quitting, “where did I go wrong?”. They will say, “when it’s over, we’ll tell you”.

And another deadline can be negotiated. Things are never over while relationships continue.

How many times have we seen political deadlines slip in the North of Ireland, for example, but eventually agreement is reached? It’s never over until it’s over.

Conclusion

These 4 principles will serve you well the next time you need to haggle or negotiate anything. It may be in your job, with your family, in your business, or just shopping.

You won’t need them all at the same time, but one you will need is the ability to give the impression of being able to walk away without batting an eyelid.

The Parties in Legal Proceedings in Irish Law

Are you confused about the parties in a civil legal action?

In this piece, I will, hopefully, clear up any confusion.

Sounds good? Let’s go.

The Plaintiff

The Plaintiff is the party who brings an action or claim against another party. A party can be an individual or a company.

The Defendant

The Defendant is the party against whom the claim is made. This can be an individual, partnership, limited company.

It is vitally important that before commencing legal proceedings you ascertain the correct defendant. For example, if you have had a bad paint job done by a painter called Mick do you sue Mick, or perhaps he has been trading as a limited company.

Or maybe he is in a partnership, with a registered business name, but you have never met the partner.

Remember, if you sue Mick and his company is the correct legal person to sue, you will be wasting your time and money, and your case will be thrown out of Court.

You need to carry out a search on the Companies Registration Office website to check out the situation. The CRO has registers of limited companies and registered business names.

A Minor Plaintiff

A minor plaintiff is a plaintiff under the age of 18 years when the legal proceedings commence, and must sue through through a next friend who will normally be the mother or father.

A Person of Unsound Mind

A person of unsound mind is also known as a person under a disability. He or she needs to sue through a next friend, too.

A Minor Defendant

A minor defendant-that is, a defendant under the age of 18 years-must defend legal proceedings through a guardian ad litem, as he cannot defend in his own name. The procedures for becoming a guardian ad litem is different in the three Courts (District, Circuit, High).

The Petitioner

If proceedings are brought by way of petition the person bringing them is the petitioner.

The Applicant

Sometimes there is no defendant as a person will bring an application to Court for something. This person is the Applicant.

The Respondent

The Respondent is the person against whom a petition or application is brought, for example in matrimonial proceedings.

The Co-Defendant

If more than one defendant is sued by the Plaintiff all defendants are co-defendants.

A Notice Party

A person or body who is not a party to the proceedings, but who may be affected by an order made in proceedings, is a Notice Party. The Notice Party can enter an Appearance in the proceedings and be heard in argument court.

The Attorney General

The Attorney General represents the State and the public interest in legal proceedings and is a necessary defendant when the constitutionality of a law is called into question.

Third Parties

Third parties are parties joined in eh legal proceedings by the defendant if the defendant alleges the third party is responsible if the plaintiff’s action succeeds.

Concurrent Wrongdoer

A concurrent wrongdoer is a party joined in the proceedings by the defendant from whom the defendant seeks a contribution or indemnity. The liability of concurrent wrongdoers is set out in section 11 of the Civil Liability Act, 1961.

Section 12 of the Civil Liability Act, 1961 sets out the extent of liability of the concurrent wrongdoer. In summary, each of the wrongdoers is each liable for the whole of the damage in respect of which they are concurrent wrongdoers.

Section 27 of the Civil Liability Act, 1961 sets out the procedure for claiming contribution from a concurrent wrongdoer.

Notice of Indemnity or Contribution

A notice of indemnity or contribution can be served by a defendant on one or more of the parties to the action. This includes a co-defendant or third party. No permission of the Court is necessary to serve such a notice.

Joining a Third Party

Joining a third party requires approval of the Court, although even if it is refused the defendant can bring separate legal proceedings for contribution against that intended third party. However, service of the notice seeking to join a third party to the proceedings must be served as soon as reasonably possible.

There are rules in each of the Courts for joining a third party to proceedings.

The Court has discretion, however, to refuse an order for contribution in an independent action for contribution.

Concurrent Wrongdoers in Personal Injuries Actions

Section 42 of the Personal Injuries Assessment Board act 2003 applies section 22 of the Civil Liability Act, 1961 in allowing claims for contributions between concurrent wrongdoers where the first concurrent wrongdoer settled with the Plaintiff.

Section 43 of the Personal Injuries Assessment Board act, 2003 applies section 18 of the Civil Liability Act, 1961. This means that an order to pay against a wrongdoer will not be a bar to an action against any other person who would, if sued, have been liable as a concurrent wrongdoer.

This means that non participating respondents are treated the same way as other respondents for the purpose of Civil Liability act, 1961.

Discovery in Legal Proceedings in Irish Law-the Essentials

Discovery is a two stage procedure in litigation. It primarily relates to documents and involves the disclosure and inspection of relevant documents in a legal case.

The purpose of discovery is to ensure the parties in a case know before trial the case they have to meet. For this reason, discovery may encourage parties to settle a case before incurring the cost of a hearing.

The rules for discovery are set out in the Court rules for each Court: District (Order 46A as amended-SI 285/1999), Circuit (Order 32) and High (Order 31).

The parties can make voluntary discovery, that is with agreement. If agreement cannot be reached the Court can be asked to make an order for discovery.

Two things are necessary before a Court will make an order for discovery:

The documents requested are relevant to the issues in the case;
The documents requested are necessary to deal with the case fairly or to save costs.

Discovery is not always appropriate or necessary, but will give an insight into the evidence the other party will be relying on at the hearing.

Inter Party Discovery

Discovery is normally made between the parties, that is, “inter party discovery”. Discovery can also be sought against a person or body not involved in the proceedings (non party discovery).

Type of Discovery

General discovery can be sought in the District or Circuit Courts. This is an order for all documents relevant to the issues in dispute in the case.

Specific discovery must be sought in High Court cases-this means the party seeking discovery must stipulate the exact categories of documents they are seeking and why they are necessary.

Seeking Discovery

Before seeking an order for discovery the parties must try, through correspondence, to agree terms for voluntary discovery between them.

The letter requesting voluntary discovery should

Be to the party against whom discovery is being sought
In the High Court specify the exact categories of documents sought
Specify the period of time within which agreement must be reached.

If agreement is not reached the party seeking discovery can seek an order from Court compelling discovery .

The Discovery Obligation

The obligation is to make discovery on oath of all documents now or previously in a party’s possession, custody or power (eg bank statements which are in custody of the bank) relating to any matter in question in the case. There is no definition of “document” in the Court rules so it is extremely broadly interpreted, and includes electronically stored information (ESI).

Documents Must Be Relevant and Necessary

Relevance is assessed by reference to “relating to any matter in question in the action”. The party seeking discovery must show the documents sought are relevant and necessary to dispose fairly of the matter in question or to save costs.

Fishing expeditions, therefore, are not permitted but in the final analysis the Court will decide what his relevant or not.

Privilege

Privilege is an entitlement to refuse production of a document, and privilege can be claimed under a number of different headings:

Legal professional privilege. This includes legal advice privilege and litigation privilege, essentially communication between legal professional and client.
Without Prejudice Statements-a document written without prejudice for the purpose of negotiating a settlement (including mediation) is protected from disclosure or admissibility as evidence in court.
State or executive privilege. This includes the State or an arm of the State.
Diplomatic privilege.
Journalistic privilege.

Where privilege is being claimed over a document it must be done so in a proper form, and the individual document over which privilege is be9ing claimed must be identified.

Non Party Discovery

Non party discovery must be firstly sought voluntarily; if agreement cannot be reached an application can be made to Court for an order. This will require a Notice of Motion and Grounding Affidavit.

Timing of Discovery

Normally discovery is made after the close of pleadings. It is only when pleadings are closed that the parties can ascertain the materials relevant to the issues in dispute. These issues will be clear from the Statement of Claim, Defence, and Replies to Particulars.

Terms of Discovery

The terms of discovery will cover issues like:

The timeframe for production of documents
The identity of the deponent
Whether cross-orders are made, that is, discovery is ordered by the Court on a mutual basis.

Two Stage Process

As stated at the outset, discovery is a two stage process. The first stage is preparing and filing an Affidavit of Discovery. This involves gathering the documents and assessing relevance and necessity.

Each document should be listed and identified and the affidavit will be sworn by the deponent, once it is finalised. It should then be filed in the court office and the other side should be advised that they are ready to exchange affidavits.

The second stage is inspection of the documents, which normally takes place at the office of the solicitor of the party whose documents are being made available for inspection.

Alternatively, a copy of the disclosed documents can be served along with the Affidavit of Discovery, rather than wait for a request for inspection.

Where discovery and inspection has been carried out there is an implied undertaking about the use of the discovered documents, that is, that they will not be used for any other purpose save for the legal proceedings at hand.

Discovery Obligations after Swearing of Affidavit of Discovery

There is no continuing obligation to discover documents which come into existence after discovery has been made.

However, documents which existed at the time of discovery, and which were not disclosed, and come into the hands of the parties after after the swearing of the affidavit should be discovered.

Penalties for Discovery Failings

In the High Court or District Court the party failing to fulfill his discovery obligations can be jailed. However, the more common course of action is for the other party to seek to have the failing party’s statement of claim or defence struck out by way of a notice of motion and grounding affidavit. Alternatively, further and better discovery can be sought in the same application.

A party cannot rely on a document at trial which he has failed or refused to produce.

If mistakes have been made and documents omitted inadvertently, a supplementary affidavit can be filed.

Getting Ready for Trial

It is common for solicitors to try to agree common books of pleadings and discovery documents to be used at trial. If discovery in the case is small a book of all discovery documents could be available for trial.

If agreement cannot be reached each party should have their own books for the trial.

A Notice to Produce is complementary to the discovery process and it allows the serving party to demand inspection of any document referred to in the other party’s pleadings and affidavits of discovery.

A Notice to Produce can be served any time but makes sense to serve it pre-trial.

Personal Injury and Medical Negligence Cases

There are extra obligations in medical negligence and personal injury cases surrounding the exchange of expert medical reports and obtaining medical records. The Freedom of Information legislation can be of assistance to general medical services (GMS) patients and patients of health board hospitals. Data protection legislation can also be availed of to access computerised records in a hospital.

Statutory instrument 391/1998 sets out the disclosure of reports and statements obligations in accordance with the rules of the Superior Courts. These rules, however, should not be seen as an alternative to discovery.

Plaintiff’s are obliged to agree to medical examination by the defendant’s doctor.

Interrogatories are questions which can be raised in lieu of discovery or after inspection of the documents discovered. The aim of interrogatories is to seek out weaknesses in the other party’s case, and ultimately reduce the length of time for the trial, and, therefore, costs.

Injunctions

It may be necessary to seek a Mareva injunction or Anton Pillar order as part of the discovery process, to prevent the disposal of assets or documents.

Solicitors in the Discovery Process

Solicitors have onerous responsibilities in the discovery process “as a client cannot be expected to know the whole scope of his responsibilities regarding discovery without the assistance and advice of his solicitor”.(Murphy v J Donohoe Limited & Others[1996]1 IR 123)

Liability for Injuries Caused by Animals-What You Should Know

The rules which relate to liability for damage or injury caused by animals fall into two categories:

Special rules, providing for strict liability
General rules in accordance with the principles of tort.

Liability Under the General Rules of Tort

Under the general rules of tort liability can arise under a number of headings:

Negligence-the usual rules of negligence will apply
Nuisance
Trespass, and there is a distinction between general rules in relation to trespass and special rules of cattle trespass. Liability under cattle trespass is strict liability whereas other types of trespass may require negligence or intention on behalf of the cattle owner.
Occupier’s Liability-liability may also arise under the Occupiers’ Liability Act, 1995.

Special Rules

One of the special rules concerning animals draws a distinction between wild animals and domestic animals.

The owner of a wild animal is strictly liable for any damage caused by that animal. This is the scienter principle.

The owner of a tame, domestic animal on the other hand will only be held liable if he is aware of a “mischievous propensity” in the animal to do damage that ultimately is complained of. It does not matter how the owner knows of this malicious tendency.

This mischievous propensity must be “a vicious, mischievous or fierce tendency”.

A defence in a scienter action will be the contributory negligence of the plaintiff, although this will only reduce the liability of the defendant.

Dogs

The Control of Dogs Act 1992 sets out the statutory position in Ireland with respect to liability of owners of doges for damage done. The Control of Dogs Act, 1986 is also relevant and section 21 of that act imposes strict liability for injuries caused by dogs to animals or persons. For strict liability to arise, however, in relation to a person there must have been an attack whereas there is strict liability in respect of damage done to livestock, with no need to show an attack took place.

A person will still have a cause of action under the scienter rule if he can show the dog had a mischievous propensity and the keeper of the dog knew this.

When a trespasser is injured by a dog the ordinary rules of negligence apply-this is not an incidence of strict liability (ref section 21(3), Control of Dogs Act, 1986).

The 1986 Act also provides remedies in the District Court for nuisance caused by barking dogs.

Cattle Trespass

Cattle which stray from their owner’s land onto another person’s property will give rise to their owner being held liable. This liability only arises when the cattle stray of their own accord.

“Cattle” includes horses, sheep, goats, pigs, assess, domestic fowl and deer.

Who is liable, however, the owner of the cattle or the owner of the land? It appears from decided cases that the person who has possession and control of the animals is liable, not the owner of the land or cattle.

The extent of the liability will be for damage done to land, crops, and animals.

Defences include

An act of God
The plaintiff’s own fault
Contributory negligence
The wrongful act of a third party.

Animals on the Road

The normal rules of negligence, discussed already, will apply. Section 2 of the Animals Act, 1985 abolished any immunity for liability in negligence. Strict liability does not apply, however, and to avoid liability a landowner needs to show that he took reasonable care in respect of fencing.

Horses in Urban Areas

The Control of Horses Act 1996 was introduced to deal with the problem of keeping horses in urban areas.