Appellant’s Skeleton Argument: Slowman Vs BeAssured Ltd. – Court Of Appeals

Legal Precedents and References

Court of Appeal (Civil Division)

Slowman v BeAssured Ltd

Judy Slowman made a claim on her buildings insurance following damage caused by a burst pipe at her home. The insurance company, BeAssured Ltd, wrote back stating that they regarded Ms Slowman as being partly to blame for the damage to the property as the damage was caused during renovation and decorating work being done by Ms Slowman.

BeAssured Ltd sent a typed letter to Ms Slowman, offering to pay a proportion of the claim made by Ms Slowman. This letter, which was produced in evidence before the first instance court, contained the following features.  There was a sentence that read, “We can pay a proportion of the claim, to the maximum of 50%, in settlement of this claim.” The figure of 50% had been underlined in blue pen, and a figure of 25% had been written in the margin of the letter, along with what appeared to be someone’s initials. The letter had been signed, in black ink, by Mr Penpusher, Senior Claims Assessor. At first instance, it was conceded by BeAssured Ltd that the signature and the purported amendment were written by two different staff members at the firm.

The figure of 50% was still clearly visible on the letter. Ms Slowman, in evidence, stated that this was the figure that she had in mind when she had accepted the firm’s settlement of the claim. Ms Slowman further stated, that had BeAssured Ltd actually sought to offer only 25% of the claim, then they would have retyped the letter in a more professional manner.

Be assured duly sent Ms Slowman a cheque for 25% of her original claim. Ms Slowman brought legal action for breach of contract, and sought the outstanding balance of the offered settlement.

At first instance, the district judge dismissed Ms Slowman’s claim on the following grounds;

1. There was no contract between Ms Slowman and BeAssured Ltd as there was no clear and true agreement between them; and, alternately,

2. Even if a contract could be found, it would have been void for mistake.

Ms Slowman now appeals to the Court of Appeal on the grounds that the district judge had erred in his findings on these two points.

You are to act as counsel for ms slowman and are required to produce;

A) A skeleton argument showing that she is entitled to the outstanding monies on the grounds that there was indeed a valid contract between the parties.

B) A verbal presentation explaining these arguments before the court of appeal.

In the court of appeals:

Slowman  Appellant -and- BeAssured Ltd. Respondent

Appellant’s Skeleton Argument

1. The district judge erred in holding that there existed no contract between Ms Slowman and BeAssured Ltd. on the basis that there was no clear or true argument between the two parties.

2. It must be noted that the essentials of the valid contract is based in the essential elements including the presence of offer, acceptance, consideration, intention and capacity.  Therefore in order to prove that the contract between the parties is valid it is essential to prove the presence of these elements.

3. A letter was provided to the appellant from the respondent with regard to the settlement of claims.  Hence the contractual agreement was made through a written agreement which can be provided as evidence. Cited here is the case of Esso Petroleum v Mardon [1976] QB 801  dealing with written contracts with expressed terms. The presence of a written agreement is evidence enough to prove the existence of a contract.

4. In order to validate a contract the presence of consensus ad idem is essential between the parties. The case of Smith v Hughes (1871) LR 6 QB 597 , the Court stated that along with consensus ad idem it was necessary that the parties have communicated the same thing by their conduct and words. Hence in the given case it can be observed that the ‘50%’ word was marked and underlined but it was not stroked out. This indicated that the purpose of the party writing the agreement did not indicate to cancel the percentage and it was considered essential to the contract.  This was what the written contract had meant. Hence consensus ad idem was present in the contract.

5. The settlement claim had adequate consideration that was to be paid to the appellant. Hence the given contract also had the presence of a valid consideration. Cited here is the case of Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Case 554  on valid consideration. Hence the essential element of a contract which is consideration is also present in the given case.

6. Further, the next important element in a valid contract is the presence of consent of both parties.  The consent of the appellant is apparent and the consent of the respondent was evident from the signature in the written agreement.  The consent given here by both parties were without the existence of any undue influence, coercion, misrepresentation.  Hence the consent required for a valid contract was also present in the given case.

7. Given the following details and citation it is evident that all the basic requirements that is required in any given valid contract is present in the written agreement. The written agreement had a proper offer, acceptance, consideration, consensus ad idem,  valid consent of both parties and hence all the essential elements that is required to enforce a valid contract.

8. This provides that the district court ruling that there was no valid contract was erred. The contract between the appellant and the respondent was a valid contract and hence the appellant is entitled to receive the extra money from that ground.

1. The district judge erred in holding that even if any contract existed between the parties, the contract would be void on the grounds of mistake.

2. With regard to minor modifications, the law states that such modifications may be hand written on the document.  However, in such cases it is necessary that the changes are stated properly and the initials of the person are given next to the change before the signing of the entire document.  Further what is even more essential is that if the other party also agrees to the changes then the agreement will have the signature of the other party as well.

3. The term in the contract between the parties stated that they are willing to pay a compensation amount based on the settlement claim and that amount would be 50% of the total claim that was made by the appellant. When the letter was received by the appellant there was a mark in blue below 50% and at the margin 25% was written in blue ink. Under the common law, the rule is once a contract is signed it cannot be modified until and unless all the parties to the contract have agreed to the modifications.

4. In accordance to the rules of modification, firstly, the modifications were not clear in the given contract since 50% mark was not stroked out but only underlined. The initials were not written beside the change made but near the margin making the ‘so called’ modification even more ambiguous.  Further the modification was not signed by the appellant making such a modification totally invalid.

5. Hence in the given contract the modification made was not a valid modification.

6. Further with regard to mistake in the given contract, common law states that in such cases of unilateral mistake where on party to the contract is mistaken with regard to the terms of the contract, the court generally uphold those contracts until it is identified that the non-mistaken party is aware of the mistake. Cited in this regard is the case of Smith v Hughes (1871) LR 6 QB 597 .

7. In the present case, even if the deed be considered as a mistake, the contract will not be considered as void since the court considers only those contracts as void when the non - mistaking party is aware of the mistake.  In the given case, the non - mistaking party is not aware of the mistake and this case is being raised.  Therefore, even if the court considers it to be a mistake the contract cannot be considered as void as a result of the mistake.

The Appellant submits that the appeal be heard.

• The case involves the validity of the contract existing between Ms. Slowman and BeAssured Ltd.
• Primarily, in accordance to the judgment delivered by the District Court, the contract is firstly invalid and secondly even if it is considered valid it is void as a result of mistake.
• I hereby, point as stated in my skeleton argument that the contract has all the essential elements present that is necessary for the validation of contract.
• This ranges from offer, acceptance, consideration to capacity and intention.
• The second argument on the presence of any mistake is also invalid since as has been stated in the argument, the rules of common law were not abided with regard to the modification.
• Also in accordance to the case of Smith v Hughes, unless the non-mistaken party is aware that it is a mistake the court upholds the contract.
• Hence, claims of the district court are not valid on the grounds given above.

Andrews N, Contract Law (Cambridge University Press 2011)

Austen-Baker R, Implied Terms In English Contract Law (Edward Elgar 2011)

Beale H, Mistake And Non-Disclosure Of Facts (Oxford University Press 2012)

Busch D, Indirect Representation In European Contract Law (Kluwer Law International 2005)

Cua C, 'Towards A General Notion Of Good Faith In English Contract Law' SSRN Journal

Furmston M, How Modern Is English Contract Law? (Centro di studi e ricerche di diritto comparato e straniero 2000)

Grundmann S and Mazeaud D, General Clauses And Standards In European Contract Law (Kluwer Law International 2006)

Jewell M, An Introduction To English Contract Law (Nomos-Verl-Ges 2002)

McKendrick E, Contract Law (Palgrave Macmillan 2007)

SIMS V, 'Good Faith In English Contract Law Of Triggers And Concentric Circles' [2004] Ankara Law Review

Spark G, 'Mistake As A Vitiating Factor In English Contract Law' SSRN Journal

Zhou Q, 'Misrepresentation In English Contract Law From An Economic Perspective' SSRN Journal

Currie v Misa (1875) LR 10 Ex

Esso Petroleum v Mardon [1976] QB

Smith v Hughes (1871) LR 6 QB