The notion of a "contract" immediately brings to mind detailed and complex documentation with onerous financial obligations, when in fact the everyday transactions of modern life involve, unavoidably, the creation of contracts. The simple purchase of groceries is underpinned by implied contractual obligations.

Some of the common complaints set out below all require a consideration of contractual rights and remedies:

• "The extension wasn't finished and the builder left it in a complete mess"
• "My car has been off the road for a month"
• "The holiday was completely ruined"
• "The central heating has never worked properly"
• "The sales rep put me under pressure to sign"

What are the essential elements of a claim for a breach of contract?

You must show that what the contract provided for a party to do by way of services, or provide by way of goods, fell short of the standard agreed or expected. The contract will sometimes set out those standards, or they may be implied under statute. For example, in carrying out building works for a consumer, the contractor is required to act with reasonable care and skill, by virtue of section 13 of the Supply of Goods and Services Act 1982.

The three main elements of establishing a claim for breach of contract are showing that:

• the existence of a contract between yourself and the other party - this can be verbal, in writing or a mixture of both;
• the contractor breached the terms of the contract;
• the breach of contract caused you a financial loss - in general terms damages for breach of contract do not include injury to feelings, inconvenience and distress.

What amounts to a breach of contract?

To answer this question we have to look at the terms of the agreement and the specific facts of each case.

Where, say, your plumber has failed to follow reasonable practice in replacing your boiler such that your central heating system is irreparably damaged, then he would in all likelihood have breached his contract with you.

If the breach is not remedied (i.e. in this instance after having been given a reasonable opportunity, the plumber fails to rectify the damage caused) you may then be able to claim damages.

What damages are recoverable?

In simple terms, the aim of compensation is to put you in the position you would have been in had the contract been performed properly. In the above example, proper care would have avoided damage to the central heating system and the substantial costs of repair to the same. The costs of repair by a third party would be recoverable from the plumber, subject to him first having been given the opportunity to put matters right.

You have at all times a duty to mitigate your loss", i.e. to act reasonably in order to keep your losses to a minimum by taking reasonable steps and avoiding those actions that would increase your loss. To use an example, if you bought a defective vehicle, you could not sue the seller for the cost of having it repaired by a third party if the seller had previously offered to repair it free of charge or if, say, a free repair (parts and labour) was available under a manufacturer's guarantee. Further, in having the vehicle repaired, you may also lose the opportunity to then reject that vehicle.

Damages for inconvenience, distress or worry are not usually awarded by English courts, save where the specific purpose of the contract is to provide enjoyment or freedom from worry (a holiday contract being a clear example of this).

What are the steps in bringing a claim?

It is important that you provide us with the agreement itself, all correspondence between yourself and the contractor, as well as documentary proof substantiating your losses (e.g. costs of repair).

We at QualitySolicitors Oliver & Co will then assess the prospects of success and, if appropriate, prepare a Letter of Claim to the defaulting contractor. Legal proceedings may be necessary if correspondence does not resolve matters satisfactorily.

What does Court action involve?

A claim is usually commenced in the County Court. There is a Court fee involved for the bringing of proceedings, which varies according to the size of the claim. For example, a claim between £5,000 and £15,000 in value requires a court fee of £225.00.

There can be significant legal costs involved in pursuing a breach of contract action, although these can be claimed from the third party, if your claim is successful. The flip side of the coin is that, if unsuccessful, you could face liability for the third party's legal costs. We at QualitySolicitors Oliver & Co perform what is known as a "costs/benefit" risk analysis to ensure that we only recommend the issue of proceedings where it is entirely appropriate to do so. We have a separate guide on the subject of "How to Fund Claims".

Are there alternatives to going to Court?

Yes - the Courts encourage the use of what is known as "alternative dispute resolution" (or ADR) which can include mediation or negotiation. Please see our separate guide entitled "Mediation".

How long do I have to bring the claim?

You must bring your claim within 6 years of the date of breach of contract. This is a general rule to err on the side of caution and in certain cases there may be different ways of assessing the deadline for issuing proceedings, but we can discuss these with you. If you fall foul of the 6 year time limit your claim cannot proceed.

What must I do if I think there will be or has been a breach of contract?

We recommend you seek immediate legal advice before entering into any form of communication with the defaulting party. Often conversations and written communications at a critical time in relations with the third party can create future problems and deprive you of remedies to which you might otherwise be entitled. For example, if you had bought a defective vehicle and had rejected this on the basis that it did not work properly, but then continued to drive the vehicle after rejection, you could lose the right to hand it back on the basis that you had "affirmed" the contract.

In conclusion, contract disputes are full of discrete issues and complexities that do not always immediately appear to reflect "common sense" perceptions. Advice from an expert at QualitySolicitors Oliver & Co should be sought from the very outset.

For further advice and information use the contact form or call 01244 354667 and ask for John Loney or 01244 354762 and ask for Sarah McDonald.