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Unread 7 Feb 2007, 19:16   #1
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The Law - Legal Advice !

Hello boys and girls.
I have a question regarding a somewhat frustrating law question which i'll attempt to break down.



My client built a greenhouse. Heater stopped working. Rare expensive orchid plant in greenhouse died as a result of frost overnight along with cheaper plants.

I have to argue that the expensive orchid was too remote from the breach so he shouldn't have to fork out £2000 for it.

The woman who wanted the greenhouse never told him she was going to store expensive plants in it but did say that building it would 'double her profits!!21'

(this isn't a real case )

My problem for you legal eagles out there is the case of Parsons and Balfour v Scottish Power.

Parsons basically states

"A particular type of loss within the parties contemplation as a serious possibility then all loss of that type is recoverable even if more serious than could have been contemplated”


Whereas in Balfour, Lord Jauncey basically says 'Im ignoring Parsons' and going with the 'should have been contemplated at time of contract' arguement.

I'm looking for some help here.

How can I counter the Parsons argument my 'most learned' friend will inevitable raise as his primary argument. The Balfour case was a HL decision and came about 20 years after Parsons which is one of the few things I can point to as a 'up yours' comment.

After much legal rambling I have written :

"This brings us to what our client had within “reasonable contemplation at the date of contract”.

We concede our client had the understanding that Ms Thrower would be placing commercial plants within the Greenhouses for use in her business. What we wish to contend is that our client had no knowledge, and could not have had any knowledge, that such plants would be rare, having great cost or that they were unable to survive a mild frost.



............more words here......


Clearly from these facts it seems absurd to infer that our client would have known the plants to be placed within the greenhouse were of high value and in need of a continuous tropical climate or indeed which plants would be placed therein. Ms Thrower at no stage informed our client that the heater was of utmost importance to the preservation of climate sensitive plants or that such expensive orchids were to be grown. Indeed even the cost of such plants varies so much it would be impossible to determine which species had been bought and was relying on the heating system installed by our client.

We therefore submit that due to this overwhelming lack of knowledge and the large number of unknowns it would be implasuable our client understood these facts at the time the contract was created. We therefore submit that the £2000 orchid replacement is too far removed and should thus not be included in costs."





Can anyone help me out with this. I know the arguement but I have this overwhelming feeling its not going to stand up against Parsons.

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Unread 7 Feb 2007, 19:30   #2
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Re: The Law - Legal Advice !

It's better you worked it out for yourself. Plus without a textbook/case reports here it's difficult to give an answer anyway.

If it isn't assessed, if you screw up so what you'll learn from it and grasp the logic better next time. Lay down all the ideas that you think are in your favour then build your arguments into a coherent order. In all seriousness, do you think the other side aren't going to be intimidated by the fact that a HL case (taking your word for it) lies squarely against them? All I'm saying is don't be afraid dude.

P.S. Damages != Costs.
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Unread 7 Feb 2007, 20:19   #3
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Re: The Law - Legal Advice !

wow law sure is neat
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Unread 7 Feb 2007, 20:31   #4
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Re: The Law - Legal Advice !

so r ur mums knickers lol
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Unread 7 Feb 2007, 20:39   #5
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Re: The Law - Legal Advice !

what does the price of the orchid have to do with anything?
Let me get the chain of events sorted as "my client" gets confusing since you use it for both of them
Person x built a greenhouse for person y
person y put expensive plant z in greenhouse
greenhouse heater broke, plant z died
person y sues person x for cost of plant z

In such an event, unless person x assured person y that the heater will not break ever and that no plant would ever die in the greenhouse, its unreasonable to hold person x responsible for it happening. Its person y's own silly fault
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Unread 7 Feb 2007, 20:41   #6
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Re: The Law - Legal Advice !

I think your trying to hard.

Put your argument in very simple format. Don't use 'tv lawyer' speak. I would put your conclusion into point format - as many as you can manage, so that your argument is very neatly presented.

Moots are always designed to have no clear answer. If there's a HL case that seems utterly against you chances are that you're wrong or you're not looking at it properly.

Dissect the speach you feel is against you. Do the other law lords agree? do they say something different? Does Lord Jauncy's test actually apply here? Is it possible that even using the test, you are still right? What is 'reasonable contemplation'? Are there any general principles of the law/commercial life which might make it un-appealing to find against you? Does lord J actually over-turn Parsons?

And as Lok says. If you do lose on liability, should the other side be entitled to more than token damages?

I would organise your mind. Write out 10 points you think are relevant or might help you win. Write out 10 points you think might make you lose. Flesh out the winners and counter the losers.

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Unread 7 Feb 2007, 21:05   #7
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Re: The Law - Legal Advice !

yahwe is such a clever young man
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Unread 7 Feb 2007, 21:07   #8
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Re: The Law - Legal Advice !

The HL case seems to 'work for me' but Jauncey never actually overturns the decision in Parsons. He says something along the lines of 'I wont discuss its merits here or whether it was wrong'.

The benefit of the Balfour case is that there was no dissenting judge and it was House of Lords. The facts dont quite match the ones I have to deal with but are 'close enough for lawyer work'.

I just have the feeling that Parsons basically gets a stick and rams it up my ass because it quite clearly states 'if you think that something might happen and it does....and because it happened something really bad happened that you didnt think would....you are still liable for the really bad thing even if you only thought a little bad thing would happen'.

Clearly my dude, if hes installing a heater should know if it fails then plants might die. It failed. Plants died. Therefore hes liable. The fact one of the plants was expensive is irrelevant because he has to have known that if the heater died plants would die so hes still liable for the expensive one even if he only thought cheap ones would be stored.

I didnt intend it to sound 'TV'. Ive written what I intended to say. Normally I do bullet points but last time I tried this I ended up getting lost and fking up what I needed to say. This time Ive written out the whole 'submission' so that I can read it and then 'adlib' things as I go along.


I even have a small section about how many species of orchids there are and how some enjoy frost but need to be kept warm when flowering. Im hoping I get some points for style and theatre heh
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Unread 7 Feb 2007, 21:13   #9
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Re: The Law - Legal Advice !

Quote:
Originally Posted by JammyJim
I even have a small section about how many species of orchids there are and how some enjoy frost but need to be kept warm when flowering. Im hoping I get some points for style and theatre heh
darling don't.

you'll get seriously criticised for trying to submit evidence.

(although if you're brave enough to try pulling it off you can say "as your lordship will be aware ... and then put it in" as it's only a moot. If you get questioned on it you can quip "my apologies my lord I had assumed that you could take judicial knowledge of these matters" - depends how brave you are)
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Unread 7 Feb 2007, 21:22   #10
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Re: The Law - Legal Advice !

Its not even a proper moot. We have a seminar on remoteness of damages and remedies for breach.

Its taking the form of a 'moot' but the judges are 3 people from our group selected at random with the lecturer (Barrister/Solicitor) present who will inevitably quiz us at the end. I should be able to slip it in but I may use the 'As your lordships will be aware" line. Thanks

I realise the point isnt 'winning' as its just for us to research all of the issues involved. The problem is that my opponent is a friend who I wish to beat.
I've spent about 6 hours tonight preparing the case and reading everything I could find dealing with remoteness and a few websites about Orchids and frost damage to see how much 'expert knowledge' is needed. Sad isnt it

Oddly I'm really looking forward to it tho. Thanks for help though. I've added a summary of points at the end I can refer to if I have time and reformatted some parts of my submission.
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Unread 7 Feb 2007, 21:25   #11
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Re: The Law - Legal Advice !

Quote:
Originally Posted by JammyJim
Oddly I'm really looking forward to it tho. Thanks for help though. I've added a summary of points at the end I can refer to if I have time and reformatted some parts of my submission.
I would seriously recommend you say "my argument has the following points" or "in conclusion one .... two .... " expressly
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Unread 7 Feb 2007, 21:26   #12
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Re: The Law - Legal Advice !

What did the 'victim' do to mitigate the risk?

Was a warrenty issued which covered loss caused directly by the heater failing?

It looks to me that the case has no real merit because the reliability of the heater could never be described as infallable. In which case it would have reasonable to assume that the owner of the orchid should have anticipated the possibility of breakdown and taken precautions to protect her property.

The value of the plant should not be taken into consideration as the seller did not, as far as your information goes, know about it.

It seems a shame that there is no legal precident for a 'shit happens' judgement.
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Unread 7 Feb 2007, 21:54   #13
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Re: The Law - Legal Advice !

Yahwe's legal genius is lost in the recruitment consultant world!
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Unread 8 Feb 2007, 00:15   #14
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Re: The Law - Legal Advice !

Quote:
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Yahwe's legal genius is lost in the recruitment consultant world!
the canvas accedes to the painting.
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Unread 8 Feb 2007, 00:18   #15
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Re: The Law - Legal Advice !

My question is quite simple, did the contract between your client and the woman who had the Orchid state that the owner of the greenhouse was liable for all the plants, if there was any maintenance problems such as the heater going out, or the irrigation system failing, etc.? If the contract doesn't state that the client is responsible/liable for all the plants in the greenhouse, then he shouldn't have to pay.

Edit: If there was no contract, then wouldn't her putting the plant in the greenhouse be 'at her own risk'.
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Unread 8 Feb 2007, 01:38   #16
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Re: The Law - Legal Advice !

contractual damage is limited to whatever the answer JammyJim is looking for, which isn't what you said because I'm presuming you are stating US law
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