# Cause-of-Action Element Templates — England & Wales

Baseline element lists for common civil causes of action and defences under English law. **These are a baseline, not the controlling law.** The elements in the applicable jurisdiction — as stated in the controlling UK authority, the relevant statute, or the applicable court's procedural rules — control. Always confirm before mapping.

**Jurisdiction note.** These templates reflect the law of England & Wales unless otherwise stated. For matters seated in Scotland, apply Scots law — Scots contract law, Scots delict law, and Scottish procedural rules differ materially from their English counterparts. For Northern Ireland, NI common law is broadly aligned with English law but has devolved legislative differences. Flag the jurisdiction before mapping.

Every template here says which source the baseline came from. The `_elements` sheet in the chart should record which template was used and the controlling authority the user confirmed.

**Citation style — OSCOLA.** All case citations in OSCOLA format: *Claimant v Defendant* [year] court report page. Statute citations: Name of Act Year, s N.

---

## How to use

1. Pick the template that matches the pleaded count.
2. Confirm with the user: "Does the applicable court's authority or this statute's specific formulation add, drop, or reword any of these?"
3. If yes, edit the list before mapping.
4. Record on the `_elements` sheet: template used, controlling authority or statute consulted, any jurisdiction-specific modifications.

A count that is not in this library — map from the leading authority, statute, or particulars of claim allegations directly. This library is not exhaustive; it covers the recurring ones.

---

## Contract

### Breach of contract

**Elements (baseline — English law; *Chitty on Contracts*; *Robinson v Harman* (1848) 1 Exch 850 `[model knowledge — verify]`):**
1. Existence of a valid and binding contract (offer, acceptance, consideration, intention to create legal relations)
2. Claimant's performance or lawful excuse for non-performance
3. Defendant's breach of a contractual term
4. Causation — the breach caused the loss
5. Loss or damage

*Jurisdiction caveat: Consideration is required for a contract under English law (though not under Scots law). Whether a term is a condition, warranty, or innominate term affects the remedy for breach. Limitation: Limitation Act 1980, s 5 — 6 years from the date of breach for simple contract; 12 years under seal.*

### Breach of implied duty of good faith (contractual context)

**Elements (baseline — limited recognition in English law; contrast civil law systems):**

*Note: English law does not recognise a general implied duty of good faith in commercial contracts (*Yam Seng Pte Ltd v International Trade Corporation Ltd* [2013] EWHC 111 (QB) `[model knowledge — verify]` — Leggatt J recognised a limited implied duty in relational contracts but this is not universally applied). Unlike in many civil law systems, a blanket good-faith obligation is not imposed. Where raised, identify the specific relational contract context and the applicable authority carefully. Flag as `[SME VERIFY: whether good faith duty recognised in this contract type]`.*

### Promissory estoppel / proprietary estoppel

**Elements (baseline — *Central London Property Trust Ltd v High Trees House Ltd* [1947] KB 130; *Crabb v Arun DC* [1976] Ch 179 `[model knowledge — verify]`):**

*Promissory estoppel:*
1. A clear and unequivocal promise or representation
2. Reliance on the promise by the promisee
3. It would be inequitable for the promisor to resile from the promise

*Proprietary estoppel:*
1. An assurance or representation that the claimant has or will acquire a proprietary interest in land or other property
2. Reliance on that assurance
3. Detriment suffered in reliance
4. It would be unconscionable for the representor to deny the interest

*Jurisdiction caveat: Promissory estoppel in English law operates as a shield (defence), not a sword (standalone cause of action) — it suspends, rather than extinguishes, the underlying legal right. Proprietary estoppel can be a cause of action creating a remedy in equity. Scots law uses personal bar rather than estoppel.*

### Unjust enrichment / restitution

**Elements (baseline — *Lipkin Gorman v Karpnale Ltd* [1991] 2 AC 548; *Benedetti v Sawiris* [2013] UKSC 50 `[model knowledge — verify]`):**
1. Defendant was enriched
2. The enrichment was at the claimant's expense
3. The enrichment was unjust (an "unjust factor" — mistake, failure of basis, compulsion, etc.)
4. No defence (change of position, bona fide purchase, etc.)

*Jurisdiction caveat: English unjust enrichment is structured around specific unjust factors; it is not a catch-all remedy. Where there is a valid subsisting contract, restitutionary claims are generally excluded for matters governed by the contract. Limitation: typically 6 years.*

---

## Tort — negligence and related

### Negligence

**Elements (baseline — *Donoghue v Stevenson* [1932] AC 562; *Caparo Industries plc v Dickman* [1990] 2 AC 605 `[model knowledge — verify]`):**
1. Duty of care owed by the defendant to the claimant (proximity, foreseeability, fair/just/reasonable to impose duty)
2. Breach of that duty (defendant fell below the standard of a reasonable person in the defendant's position)
3. Causation — the breach caused the claimant's loss (factual causation: "but for"; legal causation / remoteness: *The Wagon Mound (No 1)* [1961] AC 388 `[model knowledge — verify]`)
4. Damage or loss (physical, financial, or, in limited circumstances, pure economic loss)

*Jurisdiction caveat: Pure economic loss is generally not recoverable in negligence unless the *Hedley Byrne* principle applies (negligent misstatement / voluntary assumption of responsibility). Contributory negligence under the Law Reform (Contributory Negligence) Act 1945 reduces but does not bar recovery.*

### Negligent misstatement

**Elements (baseline — *Hedley Byrne & Co Ltd v Heller & Partners Ltd* [1964] AC 465; *Caparo Industries plc v Dickman* [1990] 2 AC 605 `[model knowledge — verify]`):**
1. A voluntary assumption of responsibility by the defendant to the claimant
2. A special relationship between the parties (proximity, reliance, and the defendant knowing the claimant would rely on the statement)
3. A negligent misstatement (false or misleading statement made without reasonable care)
4. Reasonable reliance by the claimant
5. Loss caused by the reliance

*Jurisdiction caveat: The assumption-of-responsibility test may be approached differently in different factual contexts. The extended *Caparo* test considers whether it is fair, just, and reasonable to impose liability.*

### Occupiers' liability

**Elements (baseline — Occupiers' Liability Act 1957, s 2 (lawful visitors); Occupiers' Liability Act 1984 (trespassers) `[model knowledge — verify]`):**

*Lawful visitor (OLA 1957):*
1. Defendant is an "occupier" of the premises
2. Claimant is a "visitor" (person invited or permitted to be on the premises)
3. Breach of the common duty of care — failure to take such care as is reasonable in all the circumstances to ensure the visitor will be reasonably safe for the purposes of the visit
4. Damage caused by the breach

*Jurisdiction caveat: Notice under Employers' Liability (Defective Equipment) Act 1969 and Workplace (Health, Safety and Welfare) Regulations 1992 may overlap with OLA claims in employer/employee contexts.*

---

## Tort — intentional

### Deceit (fraudulent misrepresentation)

**Elements (baseline — *Derry v Peek* (1889) 14 App Cas 337; *Bradford Third Equitable Benefit Building Society v Borders* [1941] 2 All ER 205 `[model knowledge — verify]`):**
1. A false representation of existing fact (not mere puff or opinion, unless the representor does not honestly hold the opinion)
2. Made by the defendant knowing it was false, or without belief in its truth, or recklessly as to whether it was true or false
3. Made with the intention that it should be acted upon by the claimant
4. The claimant acted upon it
5. The claimant suffered loss as a result

*Jurisdiction caveat: Must be pleaded with particularity. Fraud vitiates contracts; the victim may rescind (subject to bars) and/or claim damages in the tort of deceit, which allows recovery of all direct losses regardless of foreseeability (more generous than contractual damages under the rule in *Hadley v Baxendale*).*

### Misrepresentation (statutory — Misrepresentation Act 1967)

**Elements (baseline — Misrepresentation Act 1967, ss 1–2; *Royscot Trust Ltd v Rogerson* [1991] 2 QB 297 `[model knowledge — verify]`):**
1. A false statement of existing fact
2. Made before the contract was entered into
3. Which induced the representee to enter into the contract
4. The representee suffered loss

*Note: Under s 2(1) MA 1967, the burden is reversed — the representor must prove they had reasonable grounds to believe the representation was true (fraudulent damages measure applies). Rescission and/or damages are available depending on the category (fraudulent, negligent under s 2(1), or innocent).*

### Tortious interference with contract (inducing breach of contract)

**Elements (baseline — *OBG Ltd v Allan* [2007] UKHL 21; *Lumley v Gye* (1853) 2 El & Bl 216 `[model knowledge — verify]`):**
1. Existence of a valid contract between the claimant and a third party
2. Defendant had actual knowledge of the contract (or was wilfully blind to it)
3. Defendant intentionally induced or procured the third party to breach the contract
4. The third party breached the contract
5. The claimant suffered loss as a result

*Jurisdiction caveat: Requires actual knowledge of the contract and an intent to procure breach. "Interference" that does not amount to inducing breach is not actionable under this head — contrast unlawful means conspiracy. Economic torts in English law have complex interrelations: see *OBG* for the current framework.*

### Defamation

**Elements (baseline — Defamation Act 2013, ss 1–4 (England & Wales) `[model knowledge — verify]`):**
1. A statement that is defamatory (tends to lower the claimant in the estimation of right-thinking members of society generally)
2. The statement referred to the claimant
3. Publication to at least one third party
4. The statement caused or is likely to cause serious harm to the claimant's reputation (s 1, DA 2013 — threshold for individuals; bodies trading for profit must show serious financial harm: s 1(2))

*Defences: truth (s 2), honest opinion (s 3), publication on a matter of public interest (s 4), privilege (s 14–15). Note: operators' defences under s 5 for website operators. Limitation: 1 year from the date of publication (Limitation Act 1980, s 4A). **Scotland**: Defamation and Malicious Publication (Scotland) Act 2021 applies in Scotland — materially different. **NI**: different legislative framework.*

### Passing off

**Elements (baseline — *Reckitt & Colman Products Ltd v Borden Inc* [1990] 1 WLR 491 — the "classical trinity" `[model knowledge — verify]`):**
1. Goodwill — the claimant has a trading reputation or goodwill in England & Wales in the name, mark, or get-up
2. Misrepresentation — the defendant made a misrepresentation (whether or not intentional) leading or likely to lead the public to believe that the defendant's goods or services are those of the claimant
3. Damage — the claimant has suffered or is likely to suffer damage as a result of the misrepresentation

*Jurisdiction caveat: Goodwill must be in England & Wales (or the relevant UK jurisdiction). Mere reputation without customers or business in the jurisdiction may be insufficient. Passing off and trademark infringement often arise together but are distinct causes of action.*

### Conversion

**Elements (baseline — *Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5)* [2002] UKHL 19; Torts (Interference with Goods) Act 1977 `[model knowledge — verify]`):**
1. Claimant had ownership or an immediate right to possession of the goods at the time of conversion
2. Defendant dealt with the goods in a manner inconsistent with the claimant's right (taking, destroying, selling, using, detaining)
3. Damage — the wrongful dealing caused loss

*Jurisdiction caveat: The Torts (Interference with Goods) Act 1977 governs concurrent claims in conversion and trespass to goods. The Act provides for an order for delivery, damages, or an allowance for the defendant's improvement of goods.*

### Harassment

**Elements (baseline — Protection from Harassment Act 1997, ss 1, 3 `[model knowledge — verify]`):**
1. Conduct that amounts to harassment — a course of conduct (two or more occasions) which the defendant knows or ought to know amounts to harassment of another
2. The defendant knew or ought to have known the conduct amounted to harassment
3. The conduct caused alarm or distress to the claimant

*Jurisdiction caveat: Course of conduct requires at least two incidents. The test for "ought to know" is objective. Separate criminal and civil tracks. A claim under s 3 carries the ability to seek an injunction as well as damages.*

---

## Intellectual property (civil)

### Patent infringement (Patents Act 1977, s 60)

**Elements (baseline — Patents Act 1977, s 60 `[model knowledge — verify]`):**

*Direct infringement (s 60(1)):*
1. The claimant is the proprietor of a patent in force
2. The defendant made, disposed of, offered to dispose of, used, imported, or kept a product / used a process falling within the scope of the claims
3. The acts were done without the proprietor's consent
4. The acts were done in the United Kingdom

*Indirect infringement (s 60(2)):*
1. The defendant supplied or offered to supply means relating to an essential element of the invention
2. The means were supplied in the UK
3. The defendant knew, or it was obvious, that those means were suitable and intended to put the invention into effect
4. The supply was without the proprietor's consent

*Jurisdiction caveat: Claim construction follows the purposive approach (*Kirin-Amgen* [2004] UKHL 46; *Actavis UK Ltd v Eli Lilly* [2017] UKSC 48 on equivalents). Defences: s 60(5) experimental use, Bolar provisions, prior use. Limitation: 6 years from the date of each infringing act (s 68 PA 1977 read with Limitation Act 1980). For EP(UK) patents confirm the applicable UK national phase.*

### Trade mark infringement (Trade Marks Act 1994)

**Elements (baseline — Trade Marks Act 1994, ss 10, 11 `[model knowledge — verify]`):**

*s 10(1) — identical mark + identical goods/services:*
1. Claimant owns a registered UK (or comparable Retained EU) trade mark
2. Defendant used an identical sign in the course of trade
3. In relation to goods or services identical to those for which the mark is registered

*s 10(2) — identical/similar mark + identical/similar goods + likelihood of confusion:*
1. Claimant owns a registered trade mark
2. Defendant used an identical or similar sign in the course of trade
3. In relation to identical or similar goods or services
4. Likelihood of confusion by the public (including likelihood of association)

*s 10(3) — reputation marks:*
1. Claimant's mark has a reputation in the UK
2. Use of an identical or similar sign for any goods or services
3. The use takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark

*Jurisdiction caveat: Genuine use in the UK required to maintain registration. Post-Brexit, Retained EU trade marks (now "comparable trade marks") and UK national marks co-exist — confirm the right type relied on. For unregistered marks, passing off is the cause of action.*

### Copyright infringement (Copyright, Designs and Patents Act 1988)

**Elements (baseline — CDPA 1988, ss 16–21 `[model knowledge — verify]`):**
1. The claimant is the owner of a valid copyright in the work
2. The defendant did one of the restricted acts (copying, issuing copies to the public, performing in public, communicating to the public, etc.)
3. The act related to the whole or a substantial part of the work
4. The defendant had no licence (express or implied) or defence

*Jurisdiction caveat: No registration requirement in the UK — copyright arises automatically on creation of an original literary, dramatic, musical, or artistic work (or other qualifying subject matter) by a qualifying author. Duration: generally life of the author + 70 years. Moral rights under Chapter IV CDPA 1988 are separate from economic rights.*

---

## Employment

### Unfair dismissal

**Elements (baseline — Employment Rights Act 1996, ss 94–98 `[model knowledge — verify]`):**
1. The claimant is an employee with qualifying service (currently 2 years continuous employment: ERA 1996, s 108 — verify currency)
2. The claimant was dismissed (or constructively dismissed: s 95)
3. The dismissal was unfair — either there was no potentially fair reason (ERA 1996, s 98(1)–(2)), or the employer did not act reasonably in treating the reason as sufficient (s 98(4))

*Remedies: reinstatement, re-engagement, or compensation (basic award + compensatory award). Subject to the cap on the compensatory award (verify current cap). Jurisdiction: Employment Tribunal. Time limit: 3 months from effective date of termination, subject to early ACAS conciliation.*

*Jurisdiction caveat: Automatic unfair dismissal (e.g., for whistleblowing under ERA 1996, s 103A; for trade union reasons; on TUPE transfer) has no qualifying period and different rules.*

### Wrongful dismissal

**Elements (baseline — common law; *Addis v Gramophone Co Ltd* [1909] AC 488 `[model knowledge — verify]`):**
1. Claimant had a contract of employment
2. Defendant terminated the contract
3. Termination was in breach of the contract (e.g., without required notice or in breach of a contractual dismissal procedure)
4. Claimant suffered loss as a result

*Jurisdiction caveat: Wrongful dismissal is a common law claim for breach of contract — it does not require qualifying employment service. The measure of damages is contractual (loss of notice pay + contractual entitlements during the notice period). Unlike unfair dismissal, no cap on damages. Can be brought in the civil courts or the Employment Tribunal (within-jurisdiction cap applies in ET).*

### Discrimination (Equality Act 2010)

**Elements (baseline — Equality Act 2010, ss 13, 19, 26, 27 `[model knowledge — verify]`):**

*Direct discrimination (s 13):*
1. Claimant has a protected characteristic
2. Respondent treated the claimant less favourably than it treated or would treat a comparator (real or hypothetical)
3. The treatment was because of the protected characteristic

*Indirect discrimination (s 19):*
1. Respondent applied a provision, criterion, or practice (PCP) to the claimant
2. The PCP is applied or would be applied to persons without the relevant protected characteristic
3. The PCP puts persons with the protected characteristic at a particular disadvantage
4. The PCP puts (or would put) the claimant at that disadvantage
5. The respondent cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification)

*Harassment (s 26):*
1. Unwanted conduct related to a protected characteristic
2. The conduct has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment

*Victimisation (s 27):*
1. Claimant did a "protected act" (e.g., made a complaint or allegation of discrimination)
2. Respondent subjected the claimant to a detriment because of the protected act

*Jurisdiction caveat: Protected characteristics (EA 2010, s 4): age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion or belief, sex, sexual orientation. ET time limit: 3 months from the act complained of, subject to ACAS early conciliation. The burden of proof shifts to the respondent once the claimant establishes facts from which discrimination could be inferred (s 136 EA 2010).*

### Whistleblowing / protected disclosure (ERA 1996, ss 43A–47B)

**Elements (baseline — ERA 1996, ss 43A–47B `[model knowledge — verify]`):**
1. The claimant is a worker (not limited to employees)
2. The claimant made a protected disclosure — a qualifying disclosure to an appropriate recipient that the claimant reasonably believed tended to show one of the specified types of wrongdoing (ERA 1996, s 43B)
3. The claimant suffered a detriment (s 47B) or was dismissed (s 103A) because they made the protected disclosure

*Jurisdiction caveat: No qualifying service required. Detriment claims in ET; automatic unfair dismissal claims in ET. Whistleblowing in the public interest — the public interest test applies to the disclosure.*

---

## Competition (Competition Act 1998 / Chapter I / Chapter II)

### Chapter I prohibition claim (agreement/concerted practice)

**Elements (baseline — Competition Act 1998, s 2 `[model knowledge — verify]`):**
1. An agreement between undertakings, a decision by an association of undertakings, or a concerted practice
2. Which has the object or effect of preventing, restricting, or distorting competition in the UK
3. Which may affect trade in the UK
4. Loss caused to the claimant

*Jurisdiction caveat: Claims may be standalone (before the Competition Appeal Tribunal or High Court) or follow-on after a regulatory infringement decision (CMA, FCA, sector regulator). The CAT has jurisdiction over standalone and follow-on claims under the CA 1998. Time limits and procedures differ. The CMA and sector regulators are the primary enforcing bodies; private enforcement is supplemental.*

### Chapter II prohibition claim (abuse of dominant position)

**Elements (baseline — Competition Act 1998, s 18 `[model knowledge — verify]`):**
1. The defendant is or was dominant in a relevant market in the UK (generally 40%+ market share is a starting point but not determinative)
2. The defendant abused that dominant position (e.g., predatory pricing, excessive pricing, refusal to supply, margin squeeze, tying/bundling)
3. The abuse affected trade in the UK
4. Loss caused to the claimant

---

## Defences (selected)

Defences have their own elements that the party raising the defence generally must prove. Map them the same way as causes of action — elements, evidence, gap list.

### Limitation (Limitation Act 1980)

**Elements (baseline — Limitation Act 1980 `[model knowledge — verify]`):**
1. The applicable limitation period for the claim (e.g., 6 years for simple contract (s 5); 12 years for deeds (s 8); 6 years for tort (s 2); 3 years for personal injury (s 11); 1 year for defamation (s 4A))
2. The claim accrued on a specific date (with any discoverability rule — s 14A for latent damage; s 32 for fraud / concealment; s 33 discretion for personal injury)
3. The claimant did not issue proceedings within the period

*Jurisdiction caveat: **Scotland**: Prescription and Limitation (Scotland) Act 1973 applies — 5-year prescriptive period for most obligations; 20-year long-stop. Different rules from England & Wales. Identify the applicable period carefully.*

### Accord and satisfaction

**Elements (baseline — English contract law):**
1. An agreement (accord) to accept some performance different from, or less than, the original obligation (not merely a promise to accept less — must be supported by consideration under English law, or be under seal)
2. Satisfaction — actual performance of the agreed substitute
3. The accord and satisfaction extinguishes the original obligation

### Volenti non fit injuria

**Elements (baseline — English tort law):**
1. The claimant had full knowledge of the nature and extent of the risk
2. The claimant voluntarily agreed to run the risk (not merely to be present where the risk was)
3. The defence applies to the claim in question (limited where safety legislation imposes the duty)

### Contributory negligence

**Elements (baseline — Law Reform (Contributory Negligence) Act 1945 `[model knowledge — verify]`):**
1. The claimant was guilty of some negligence which contributed to their damage
2. A reduction in the claimant's damages by the degree to which the claimant's fault contributed to the damage

*Note: Contributory negligence reduces but does not extinguish the claim under the 1945 Act. **Scotland**: analogous doctrine applies under the Law Reform (Contributory Negligence) Act 1945 as extended to Scotland.*

### Illegality / ex turpi causa

**Elements (baseline — *Patel v Mirza* [2016] UKSC 42 `[model knowledge — verify]`):**
1. The claimant's claim arises out of illegal conduct
2. Applying the trio of policy rationales — whether allowing the claim would be inconsistent with the policies underlying the illegality, whether it would be unjust to deny recovery in the circumstances, and considering the proportionality of any denial

*Jurisdiction caveat: **Patel v Mirza* moved English law away from a rule-based approach to a flexible, policy-based assessment. The defence is highly fact-sensitive.*

### Estoppel by representation

**Elements (baseline — *Spencer Bower, Turner and Handley: Estoppel by Representation* `[model knowledge — verify]`):**
1. A clear and unequivocal representation of fact (not law) by the representor
2. Intended to be and in fact acted upon by the representee
3. Detrimental reliance by the representee
4. It would be inequitable to allow the representor to deny the representation

### Without prejudice privilege (exclusion of evidence)

*Note: This is an evidential protection, not a defence in the traditional sense. It operates to exclude settlement communications from evidence.*

**Requirements (baseline — *Rush & Tompkins Ltd v Greater London Council* [1989] AC 1280 `[model knowledge — verify]`):**
1. Communications genuinely aimed at settling a dispute (not merely labelled "without prejudice")
2. The protection may be waived if both parties consent, or if one of the limited exceptions applies (e.g., to determine whether a settlement was reached, to challenge the good faith of negotiations in limited circumstances)

---

## Adding a template

This library is not exhaustive. When a new cause of action or defence comes up:
1. Map the elements from the controlling English (or UK) authority, statute, or relevant Practice Direction.
2. If the template is likely to recur across matters, add it here with a citation in OSCOLA format.
3. Note the jurisdiction caveat — where the elements vary between England & Wales, Scotland, and NI, say so and give the alternative formulation.

Templates are a baseline, not an authority. The controlling English (or UK) authority or statute always controls.