Q&As

Where, arising out of the same factual scenario, A has a cause of action in contract against B and a cause of action in tort against C, does it matter whether A brings a claim against B or C?

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Produced in partnership with Karen Hellier of Clarke Willmott
Published on LexisPSL on 25/04/2018

The following Dispute Resolution Q&A produced in partnership with Karen Hellier of Clarke Willmott provides comprehensive and up to date legal information covering:

  • Where, arising out of the same factual scenario, A has a cause of action in contract against B and a cause of action in tort against C, does it matter whether A brings a claim against B or C?

Where, arising out of the same factual scenario, A has a cause of action in contract against B and a cause of action in tort against C, does it matter whether A brings a claim against B or C?

We assume there is a contractual relationship between A and B to which C is not a party and has no third party rights under it.

In answering this Q&A, we have focussed on the assumption that the contractual obligations between A and B are silent on the question of any prospective claim in tort against C.

Contract and tort claims are separate actions so it would not matter if A chooses to bring a contractual claim against B and a tortious claim against C or decided to bring a claim against one of the parties only.

In the case of a professional negligence claim, there could be contractual duties and concurrent duties in tort which may effect how a claimant decides to proceed and against which party. For more information on this, see Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity.

From a purely practical perspective, in the scenario given above, the first consideration would be which party has the greatest ability to pay any award of damages whether awarded under a contractual claim or a tortious claim.

However, there are other

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