Litigation Strategy Case Study

Litigation Strategy
Litigation Strategy

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Litigation Strategy: Beautiful Carbon Ltd v Shutter-Ways Ltd

Instructions

This is a litigation task, please help to find the best strategy.

This should be from the position of an applicant in a summary judgment and it will be good to find the best strategy to make the applicant position clear

This is based on UK law, please use appropriate legislation, case law, CPR rules etc. and the own documents (e.g. witness statement) and for example the Sale of Goods Act etc.

1. You are the applicant

2. The other part will be sitting as a judge.

3. You must behave at all times as an advocate in a court of law.

4. Please remember that Professional Conduct is pervasive and that points of Professional Conduct can arise.

5. Your submission are 10 minutes.

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Or you can divide the Task in:

– Introduction and Chronology

– Substantive Legal Issues and CPR Rules

– Relevant Facts Agreed and in Dispute (Witness statements etc.)

– Procedural Issues / Procedures

– Possible Judgements and Costs

– Conclusions

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Statement of agreed facts for Applicant and Respondent

The Claimant is Beautiful Carbon Ltd. The Defendant is Shutter-Ways Ltd. The parties are in a dispute regarding the supply and installation of a heavy duty steel roller shutter door by the Defendant at the Claimant’s premises.

Proceedings have been issued and served. The Defendant served a Defence. The Claimant has issued an application for summary judgment. The Defendant’s solicitors have filed a witness statement opposing the application.

The hearing has an agreed time estimate of 20 minutes.

The parties have exchanged summary statements of costs and have agreed a sum of

£1,500 should any order for costs be made.

Please assume for the purpose of that hearing is taking place on Wednesday, 18 August 2021 at 10.00am.

The Claimant is represented by ULaws LLP and the Defendant is represented by Swallows & Co.

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Please Note:

(1)        The letter before claim, claim form, acknowledgment of service form, draft order and summary statements of costs are not provided. You may assume that these documents are irrelevant to this application.

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

PARTICULARS OF CLAIM

1.         At all material times the Claimant was a retailer, manufacturer and importer of jewellery and the Defendant was a manufacturer, retailer and installer of security shutters and doors.

2.         On 15 January 2021 at approximately 12.00pm, Tommy Linn (“Mr Linn”), acting for the Claimant, spoke on the telephone to Juris Petersons (“Mr Petersons”) acting on behalf of the Defendant. Mr Linn entered into a contract with the Defendant through Mr Petersons, for the Defendant to supply and install at the Claimant’s premises in Birmingham a 7 metre (high) by 4 metre (wide), electrically powered, heavy duty steel roller shutter door that met the LPS1175 security specification (“the Shutter”) for the price of £40,000 inclusive of VAT (“the Contract”).

3.         In that telephone conversation and before placing the order, Mr Linn described the site at which the Shutter was to be installed as the garage and security door at the back entrance to the Claimant’s retail, storage and manufacturing hub at Vyse Street, Birmingham. Mr Petersons confirmed that the Shutter would be electrically powered and have an anti-drop safety brake. He then gave Mr Linn an Order No. of 21-0115-2 and the Contract was concluded.

4.         The Contract included implied terms that the Shutter would be of satisfactory quality; reasonably fit for its specified purpose as a garage and security door; and installed with reasonable care and skill.

5.         The Claimant paid the contract price of £40,000 to the Defendant on 22 January 2021 and in purported performance of the Contract the Defendant’s workmen installed the Shutter at the Claimant’s premises on 12 March 2021.

6.         In breach of the implied terms of the Contract the Shutter was not of satisfactory quality and not reasonably fit for its specified purpose as the garage and security door at the back entrance to the Claimant’s retail, storage and manufacturing hub. Further and in the alternative the Shutter was not installed with reasonable care and skill.

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PARTICULARS OF BREACH

6.1       On 19 May 2021 at 09.30am, the Shutter’s counterbalanced spring (“the Spring”) failed in operation as it was insecurely attached to the spring housing.

6.2       Following the failure set out in paragraph 6.1 above, the anti-drop safety brake of the Shutter operated, but when the weight of the Shutter was placed upon it the brake’s flange broke, as it was of inadequate strength to take the weight of the Shutter.

6.3       The assembly and installation of the Shutter, in particular the Spring, was carried out without reasonable care and skill, in that the bolt that attached the Spring to its housing was damaged and cross threaded such that the nut could not be fully tightened and the Spring securely attached to its housing.

7.         As a consequence of the breaches of the implied terms, the Shutter fell in an uncontrolled manner onto a car owned by the Claimant, which was damaged beyond repair. The Shutter required immediate emergency repairs to secure the Claimant’s premises. The Shutter was later fully repaired and rebuilt to ensure future safe use.

8.         By reason of the above the Claimant has suffered loss and damage.

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PARTICULARS OF LOSS AND DAMAGE

Brand new – purchased 1 May 2021

Mercedes S Class Coupe AMG S65

(incl Night package) – written off       186,675.00

(less scrap value – estimated) (10,000.00)

Emergency Repairs to Shutter (incl VAT)      5,000.00

Final Repairs and Rebuild to Shutter (incl VAT)         15,000.00

9.         In respect of damages awarded the Claimant is entitled to interest under s35A Senior Courts Act 1981 at such rates and for such period as the court thinks fit.

AND the Claimant claims:

a.         Damages pursuant to paragraph 8 above

b.         Interest pursuant to paragraph 9 above

Dated 25 June 2021   ULaws LLP

   ULaws LLP

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STATEMENT OF TRUTH

I believe that the facts stated in this Particulars of Claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the Claimant to sign this statement.

Tommy Linn

Tommy Linn, Managing Director of Beautiful Carbon Ltd

The Claimant’s solicitors are ULaws LLP of 37 Temple Row, Birmingham B2 5LF (Ref BH/kj/2021) where they will accept service on behalf of the Claimant.

To: the Defendant and Court Manager

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

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DEFENCE

1.         All names and abbreviations in this Defence are those used and defined in the Particulars of Claim.

2.         The Defendant admits paragraphs 1 to 4 of the Particulars of Claim.

3.         As regards paragraph 5 of the Particulars of Claim, the Defendant admits the payment of £40,000 by the Claimant and asserts that the installation of the Shutter at the Claimant’s premises on 12 March 2021 was wholly in accordance with the Contract and was in full and complete performance of the Contract.

4.         The Defendant denies it was in breach of contract as alleged in paragraph 6 of the Particulars of Claim or at all. The Shutter was of satisfactory quality and reasonably fit for its specified purpose as the garage and security door at the back entrance to the Claimant’s retail, storage and manufacturing hub. The Shutter was installed with reasonable care and skill.

5.         In particular, the Spring was securely attached to its housing by 2 bolt and nut combinations that were secured and then checked by the Defendant’s supervisor upon installation.

6.         The anti-drop safety brake of the Shutter was of sufficient strength and effectiveness to hold the Shutter safely open for an indefinite period. It was designed and manufactured to specifications capable of holding a heavy duty steel roller shutter of up to 10 metres by 8 metres.

7.         If, as alleged by the Claimant, the Spring did fail and the anti-drop brake flange broke, the Defendant denies that this was due to any defect in the Shutter or lack of care in its installation, but was the result of interference, by persons unknown to the Defendant, with the mechanism of the Shutter.

8.         The Defendant is unable to admit or deny and requires the Claimant to prove the matters set out in paragraph 7 of the Particulars of Claim as the Defendant has no knowledge of these matters.

9.         If, which the Defendant is unable to admit or deny, the Claimant has suffered any of the damage and loss set out in paragraphs 7 and 8 of the Particulars of Claim the Defendant denies that they occurred as a result of any breach of contract by the Defendant for the reasons set out in paragraphs 5-7 above. Further, the Defendant alleges that if the Claimant has suffered any losses it has failed to mitigate them as it is claiming the full cost of a new car and excessive amounts for any repairs needed to the Shutter.

10.       It is denied that the Claimant is entitled to the relief claimed or any relief.

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DATED 9 July 2021    Swallows & Co

Swallows & Co

STATEMENT OF TRUTH

I believe that the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the Defendant to sign this statement.

Valdis Petersons

Valdis Petersons, Managing Director of Shutter-Ways Ltd.

The Defendant’s solicitors are Swallows & Co of 39 Victoria Street, Wolverhampton, WV1 3DH (Ref LP / ert / 342) where they will accept service of proceedings on behalf of the Defendant.

To: The Claimant and Court Manager

N244

APPLICATION NOTICE

For help in completing this form please read the notes for guidance form N244 Notes       Name of court

High Court of Justice

Queen’s Bench Division Birmingham District Registry          Claim No.

HQ21 4859

            Fee account no.

(if applicable)  Help with Fees – Ref No. (if applicable)

            WDE 45367    HWF –

            Warrant No.

(if applicable) 

            Claimant’s name (including ref)

Beautiful Carbon Ltd (Ref BH/kj/2021)

            Defendant’s name (including ref)

Shutter-Ways Ltd (Ref LP/ert/342)

            Date    23 July 2021

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1.         What is your name or, if you are a legal representative, the name of your firm?

2.         Are you a                    [ ]Claimant       [ ]Defendant    [X] Legal Representative [ ] Other (please specify)

If you are a legal representative who do you represent?

3.         What order are you asking the court to make and why?

4.         Have you attached a draft of the order you are applying for? [ X ] yes         [ ] No

5.         How do you want to have this application dealt with? [X] at a hearing [ ] without a hearing

[ ] at a telephone hearing

6.         How long do you think the hearing will last?   [ ] Hours          [20] Minutes Is this time estimate agreed by all parties    [ X ]Yes           [ ] No

7.         Give detail of any fixed trial date or period

8.         What level of Judge does your hearing need?

9.         Who should be served with this application?

9a. Please give the service address, (other than details of the claimant or defendant) of any party named in question 9

10.       What information will you be relying on, in support of your application? [ X ] the attached witness statement

[ X ] the statement of case

[ ] the evidence set out in the box below

11.       Signature and address details

Signed

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   ULaws LLP 

Applicant(‘s Solicitor) (‘s litigation friend)

Dated  23 July 2021  

Position of office held

(if signing on behalf of firm or company)

Applicant’s address to which documents about this application should be sent

37 Temple Row, Birmingham If applicable

            Phone No.       0121 426 5800

            Fax No.           0121 426 5900

Postcode         B2 5LF DX No.            795135

Birmingham 50

            Ref No.           BH/kj/2021

Claimant

1st

T. Linn Exhibit TL 1- 4 22 July 2021

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

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WITNESS STATEMENT OF TOMMY LINN

I, Tommy Linn, company director, of 31 Vyse Street, The Jewellery Quarter, Birmingham B6 1SQ, will say that:-

1.         I am the Managing Director of the Claimant and I am duly authorised by the Claimant to make this witness statement in support of its application for summary judgment. Save as otherwise indicated, the contents of this witness statement are within my own knowledge and are true. Where the contents of this witness statement are not within my knowledge, I have set out the source of my information and belief.

2.         I founded the Claimant business in 1987 and I take a close and daily interest in running the business. When the rear garage entrance to our premises in Vyse Street needed a new security shutter door I set out to try and find a replacement (“the Shutter”). I made enquires as to suitable retailers.

3.         My enquiries led me to the Defendant and I rang them on 15 January 2021. I was put through to a man called Juris Petersons. He sounded so young that I asked him if he was the most senior negotiator for the Defendant and he responded crisply that he was the son of the family

and was the most senior available. I negotiated with him pretty hard and thought I had secured a real bargain when I got him down to £40,000 to include installation and VAT for the Shutter.

4.         I was at our Vyse Street premises when the installation took place on 12 March 2021. I was a little surprised to meet Juris Petersons in person on site and in workman’s overalls; but he said he was getting to know his father’s business from all angles and had been involved in installing shutters for over 10 years. We joked he must have started young. Juris Petersons appeared to be in charge of the installation and I did see him with a checklist talking to his workers.

5.         Once the Shutter was installed it was immediately in use. Numerous times a day I, my employees and delivery vans used the Shutter to enter and exit the premises.

6.         On 19 May 2021 at about 09.30am I had just arrived at Vyse Street. My driver Maria Jenkins set me down at the front door and drove round the back of the building to park the car in the garage. It was only a few seconds later that I heard a loud rumble and crash from the back of the building. I ran round to the back entrance and saw that my new Mercedes had been smashed, almost into 2 parts, by the fallen Shutter. I was terrified that Maria was in the car and had been killed, but she appeared from out of the dust and told me that she had got out of the car to see what was blocking her way into the garage and so was not hurt. I was very relieved.

7.         I was also angry. My new car, which I had only bought on 1 May 2021, was smashed and a write off. I attach the loss adjuster and insurance reports as exhibits TL1 and TL2 (not attached here). Also, I had to get the premises secured immediately. You cannot have an unsecured entrance to a jewellery business.

8.         I contacted the Defendant later that morning. I spoke to Valdis Petersons this time and I told him that the Shutter had to be sorted that day. Valdis said he had no one available. He asked me to leave it as it was for a few days so he could get it checked. I said I had to get it repaired immediately but was willing to preserve any broken parts for his team to inspect. He said that I could not expect any help from him if his men didn’t get access to the Shutter as it was. The conversation did get a little confrontational at that point and quickly ended.

9.         I engaged the services of Shut-Rite Ltd to do emergency and final repairs to the Shutter and to preserve any damaged parts for later inspection. A copy of their account is attached as exhibit TL3. I also had the damaged parts inspected by a consulting engineer I know called Brian Matthews. His report is attached as exhibit TL4. As can be seen, his opinion is that the Shutter was poorly installed and the anti-drop brake was inadequate for the weight of the Shutter.

10.       On the available evidence I believe that, despite the Defence filed, the Defendant has no real prospect of successfully defending the claim and I know of no other compelling reason why this matter should be disposed of at trial. I ask the court to grant summary judgment, with damages to be assessed at a later disposal hearing.

11.       I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

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Signed: Tommy Linn

Tommy Linn Dated: 22 July 2021

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

EXHIBIT TL3

I verify that this is the document referred to as TL3 in my witness statement made on 22 July 2021.

Tommy Linn

Tommy Linn

“TL3”

Shut-Rite Ltd 12 Anchor Rd

Hockley Birmingham

B7 4RE 07912345698

www.shutrite.co.uk

FAO Tommy Linn Beautiful Carbon Ltd 31 Vyse St

The Jewellery Quarter Birmingham B6 1SQ

Invoice No.      26th May 2021            £

21 5 5DK         Item 1. Heavy duty steel roller shutter Spec. 4166.67

            LPS1175. Emergency Repair 19/5/21, clear up       

            and preservation of damaged parts as           VAT 833.33

            instructed.      

            Item 2. Rebuild of Heavy duty steel roller      12500.00

            shutter 26/5/21 as above to Spec LPS1175  

                        VAT 2500.00

            Total works and parts 16666.67

            Total VAT        3333.33

            To be paid by close of business 9th June      £20,000.00

            2021   

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

EXHIBIT TL4

I verify that this is the document referred to as TL4 in my witness statement made on 22 July 2021.

Tommy Linn

Tommy Linn

“TL4”

BRIAN MATTHEWS

BSc HONS ENG FI Mech eNG

FAO Tommy Linn Beautiful Carbon Ltd 31 Vyse St

The Jewellery Quarter

BUILDING SERVICES CONSULTNG ENGINEER

        (communication services are my speciality)

Birmingham B6 1SQ  31 May 2021

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Dear Tommy

Here are my views on your shutter disaster.

Today I had a look at the parts of the original Shutter-Ways shutter that the Shut-Rite lads had put to one side. I looked at the following items:-

Counterbalanced Spring Spring Housing

Spring securing bolts (2 of) – I couldn’t find any nuts Anti-drop brake flange

Two things struck me immediately.

1.         The anti-drop brake flange is broken. It looks as if the weight of the shutter was too much for it. Poor design in my view.

2.         A key part of the mechanism for the shutter is the counterbalanced spring (the Spring). When in use it is vital that the Spring is held securely in place within its housing. If it is not secure it can distort, slip and fail and the shutter would descend without any control.

That is what seems to have happened here. I have seen the bolts that held the Spring to the housing and one of the bolts has damaged threads; so it would have been cross threaded when installed and could not be tightened properly. This would mean that the Spring was not held in place securely. The Spring shows physical evidence of distortion.

Anyway Tommy I hope this is useful to you in getting this sorted. This is a freebie for a pal but if you want a formal report I will have to charge my usual fee of £1500 plus VAT and I would want to commission a metal fatigue test on the flange and that will cost another £500 at least.

Cheers

Brian

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Defendant

1st

V. Petersons Exhibits VP 1- 2 6 August 2021

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

WITNESS STATEMENT OF VALDIS PETERSONS

I, Valdis Petersons MSc, company director, of Unit 6, Parkside Industrial Estate, Sutton SM3 8BF, will say that:-

1.         I am the Managing Director of the Defendant and I am duly authorised by the Defendant to make this witness statement in response to the Claimant’s application for summary judgment. Save as otherwise indicated, the contents of this witness statement are within my own knowledge and are true. Where the contents of this witness statement are not within my knowledge, I have set out the source of my information and belief.

2.         I founded the Defendant business in 2004. I have degrees in civil and mechanical engineering from Riga Technical University and wanted to set up a business in the UK using my skills.

3.         The Defendant sells and installs the electrically powered roller shutter doors that it manufactures. We specialise in one type of product and offer a shutter that is of high quality and tailored to the customer’s needs. Each shutter is manufactured to order and is manufactured and installed in accordance with strict and documented quality guidelines.

4.         The shutter installed at the Claimant’s premises on 12 March 2021 (the Shutter) was to my design. I have designed shutters for over 20 years. This design is appropriate for shutters up to 10 metres high and 8 metres wide. An anti-drop safety brake is standard in this design and is of sufficient strength to stop and hold a shutter of up to 10 metres by 8 metres. I have read Mr Brian Matthews’ letter at exhibit TL4. His claims that the Shutter was too much weight for the anti-drop brake flange and that it was a “poor design” are nonsense. If the flange he inspected was broken in use I can only think that it was the result of the Claimant’s staff meddling with the Shutter after it was installed. The standard instructions left with the Claimant after installation clearly state that any servicing, repairs or alterations must be done by qualified and experienced personnel or the safety of the Shutter will be compromised. I attach a copy of the instructions as exhibit VP1.

5.         The Shutter was manufactured at the Defendant’s factory on 17 February 2021 and installed at the Claimant’s premises by one of the Defendant’s experienced work teams on 12 March 2021. I attach the installation instructions and completed installation checklist as exhibit VP2. As can be seen the installation was correct and complete and this included an inspection of the counterbalanced spring and its housing. This document was completed and signed by my eldest son Juris Petersons (Juris) who was acting as supervisor for the work team on that day.

6.         Unfortunately Juris is currently in Riga and has been there for the last month. His maternal grandmother is terminally ill and I could not be spared from the business. It is anticipated that he will return by the end of this month. Juris will then be available to give evidence at any trial of this claim. [Please Note: Here you may assume that there are no relevant Covid-19 travel restrictions involved].

7.         Juris’ evidence is vital for the Defendant. I spoke to him immediately after Mr Linn telephoned me on 19 May. Mr Linn had been almost incoherent when he phoned and from the little he told me I couldn’t see why or how such an incident could have occurred. Mr Linn just kept shouting that I had to secure his back door immediately or thieves would steal his gold. My offer to inspect the Shutter within a day or so was shouted down, as was my suggestion that security guards would stop thieves. When he started to threaten me I just put the phone down. I needed information about the job and so I spoke to Juris.

8.         Juris assured me that the installation had gone well and that he had left the standard instructions with Mr Linn. He also told me that he did have concerns about Mr Linn’s garage staff who, even as Juris demonstrated the operations and controls of the fully installed Shutter, were already complaining about how slowly the Shutter moved and asking if it could be speeded up. Juris said he had warned them not to mess about with the mechanics of the Shutter.

9.         The above facts make it clear that the Defendant has a defence with a real prospect of succeeding at trial. In addition, it is submitted that the Defendant be given the opportunity to obtain further factual and expert evidence and this is a compelling reason why this case should be disposed of at trial.

10.       I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

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Valdis Petersons Valdis Petersons Dated: 6 August 2021

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

EXHIBIT VP1

I verify that this is the document referred to as VP1 in my witness statement made on 6 August 2021.

Valdis Petersons

Valdis Petersons

“VP1”

Unit 6,

Parkside Industrial Estate,

Sutton SM3 8BF TEL. 0208 6539783

www.shutterways.co.uk

[EXTRACTS FROM INFORMATION LEAFLET – Please may assume that the remainder of this document is irrelevant to this application.]

Looking after your Shutter-Ways shutter + SAFETY INFORMATION

You have just purchased a quality product from a reputable manufacturer and it is important to keep it in good repair. Follow these few simple steps and your Shutter-Ways shutter will give you many years of good and SAFE service.

1.         Service Intervals. To ensure your shutter is safe in use you must have it serviced by a Shutter-Ways approved engineer in accordance with the following intervals:

•           1st service, 6 months after installation

•           Subsequent services to be performed every 12 months

2.         Service provider, alterations and improvements

Your shutter is a precision instrument and must be repaired, serviced and cared for by experienced personnel. We strongly recommend you use a Shutter-Ways approved engineer and Shutter-Ways approved parts for any service, repairs or alterations.

If you do not use a suitably experienced and qualified Shutter-Ways approved engineer and high quality spare parts your shutter could become dangerous.

3.    ……

Claim Number: HQ21 4859

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Birmingham District Registry

BETWEEN:

Beautiful Carbon Ltd and

Shutter-Ways Ltd

Claimant

Defendant

EXHIBIT VP2

I verify that this is the document referred to as VP2 in my witness statement made on 6 August 2021.

Valdis Petersons

Valdis Petersons

“VP2”

Installation Instructions & Checklist.

No Shutter can be logged as final and complete unless ALL checks listed are done and signed off by your supervisor.

Valdis Petersons (Chairman)

Part     Installed           Checked         Notes

Safety plate     Yes      JP       

Springlock hanger       Yes      JP       

Housing Front Yes      JP       

Housing Bottom          Yes      JP        Small scratch – checked ok with Tommy Linn

Motor Bracket Yes      JP       

Counterbalanced spring         

Yes      JP       

Counterbalanced spring

Housing          

Yes      JP       

[EXTRACT FROM CHECKLIST – Please may assume that the remainder of  this document is irrelevant to this application.]

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Arson and Kidnapping Criminal Law

Arson and Kidnapping Criminal Law
Arson and Kidnapping Criminal Law

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Arson and Kidnapping Criminal Law

Read the following:

Criminal Law, Chapter 1; pg. 3-23

“How to Prepare for Criminal Law Class”

Prepare the following questions for discussion:

Identify the elements in the following statutes:

RCW 9A.48.030: Arson in the second degree.

A person is guilty of arson in the second degree if he or she knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building….

Model Penal Code (MPC) Section 212.1: Kidnapping.

Arson and Kidnapping Criminal Law

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A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:(a) to hold for ransom or reward, or as a shield or hostage; or(b) to facilitate commission of any felony or flight thereafter; or(c) to inflict bodily injury on or to terrorize the victim or another; or(d) to interfere with the performance of any governmental or political function.

“Problem Case”, pg. 19: Did the jury in the O.J. Simpson murder trial engage in jury nullification? Were they invited to do so by the defense? For those who have never heard of O.J. Simpson or his infamous murder trial, here’s a link to a quick summary from Prof. Douglas Linder of the University of Missouri-Kansas City School of Law [WARNING: The language used by one of the LAPD detectives in this trial included vile racist references]. Pay particular attention to the excerpt of the closing argument of Simpson’s lead attorney, Johnny Cochran: https://famous-trials.com/simpson/1862-home

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Second Amendment and Constitutional Interpretation

Second Amendment and Constitutional Interpretation
Second Amendment and Constitutional Interpretation

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Second Amendment and Constitutional Interpretation

An Introduction to the Constitution and Constitutional Argument

Please read the text of the Constitution in the casebook starting on p. xxxix.

Please read the excerpt from Professor Bobbit that has been sent to you as a PDF and is available on TWEN.

Bobbit 1st Assn Reading.pdf

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Please read casebook materials on the Second Amendment and Constitutional Interpretation (pp. 11-32).

Class #2: Judicial Review (and Judicial Supremacy)

Casebook pp.1-11 (Marbury and related materials)

(additional materials previously included in syllabus now will be covered in lecture)

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Johnson v M’Intosh: Property Law

Johnson v M’Intosh
Johnson v M’Intosh

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Johnson v M’Intosh

These materials raise broad issues that we will touch upon throughout the course. Johnson v M’Intosh illustrates some of the fundamental principles underlying property law (the idea of being first; the power of defining “first”; different rights with respect to property; and the relationship between property law, and law generally, and power).

Shelley v. Kraemer illustrates the use of property law, and law generally, to enforce and combat racial discrimination. We will also use that case to discuss the choices available to a lawyer in combatting injustice – to be more precise, see if you can think of an alternative strategy that the lawyer could have taken to reverse the lower court opinion (hint: this alternative strategy would have been less robust in combatting racial discrimination).

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These readings introduce us to some of the fundamental principles that at the foundation of much of property law – property rights acquired through acquisition. Some of the same questions raised in Johnson are raised here – who is first; how do we define first; why should we define first in a certain way (and more fundamentally, why should we care who was first). More specifically, think about how to argue that these cases are all consistent with each other. Also ask yourself what role public policy plays in these opinions. Do you think that the judges are using public policy appropriately, or are they substituting their own policy preferences for what the law provides?

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Constitution and Constitutional Argument

Constitution and Constitutional Argument
Constitution and Constitutional Argument

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Constitution and Constitutional Argument

Class #1: An Introduction to the Constitution and Constitutional Argument

Please read the text of the Constitution in the casebook starting on p. xxxix.

Please read the excerpt from Professor Bobbit that has been sent to you as a PDF and is available on TWEN.

Bobbit 1st Assn Reading.pdf

Please read casebook materials on the Second Amendment and Constitutional Interpretation (pp. 11-32).

Class #2: Judicial Review (and Judicial Supremacy)

Casebook pp.1-11 (Marbury and related materials)

(additional materials previously included in syllabus now will be covered in lecture)

Constitutional Law I (CNLW-200-O)

Professor Siegel

Casebook: Erwin Chemerinsky, Constitutional Law (6th edition) (please note that Dean Chemerinsky also has a treatise by the same name; make sure to buy the casebook)

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Tort of Negligence

Tort of Negligence
Tort of Negligence

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Tort of Negligence

Having gained a better understanding of the legal system, the PI owners can now shift their focus to examining specific areas of law that create potential risks and liabilities for their business. The group knows from their business experience, and from talking with others in the business community, that businesses face serious and costly risks and legal liabilities stemming from tort law. 

Unintentional harm resulting from accidents, such as in the unintentional torts of negligence and product liability, can result in costly litigation. For example, the construction company that Jo manages was sued by a client who was injured when one of the constructions employees accidentally dropped a ladder on the client’s legs. Maddy and Taylor are also concerned about the possibility of accidents occurring in the PI public offices that could create risks of premises liability under negligence. 

Pat and Gale asked you to analyze and summarize potential negligence and premises liability risks that PI might face in its business operations. You are to create a Power Point presentation of your findings for presentation to PI owners at their next meeting with BCA.

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The Power Point should address only the tort of negligence and include the following.
A. Analyze and describe specifically potential tort risks and liabilities that PI could face under negligence for each of the following categories.
1. Accidents occurring from painting services on clients’ property• also include a specific example as part of the analysis and Power Point
2. PI employees• also include a specific example as part of the analysis and Power Point
3. Third parties• also include a specific example as part of the analysis and Power PointSummary Report:
TO: Pat Braden, Gale RothFROM: (Your Name)RE: Paint Images – Tort of negligenceDATE:
Use APA In-text citationNo outside Reference other that these:
https://www.saylor.org/site/textbooks/Advanced%20Business%20Law%20and%20the%20Legal%20Environment.pdf
https://saylordotorg.github.io/text_advanced-business-law-and-the-legal-environment/s10-introduction-to-tort-law.html
https://www.youtube.com/watch?v=2w0RMyelDno

https://www.diffen.com/difference/Civil_Law_vs_Criminal_Law
http://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html
https://www.nolo.com/legal-encyclopedia/what-premises-liability.html
https://www.youtube.com/watch?v=_KHIWhwj5as

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Law of Contract

Law of Contract
Law of Contract

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Law of Contract

A.

Outside Settings

Standard Form Sales Contract for Painting Work

This is a binding contract. The manufacturer and the buyer, by signing this contract acknowledge that the painting will be delivered under the cost and conditions presented herein.

This is a contract between the two parties indicated below.

………… (Buyer)

Address: 
Email Address: 
Phone Number: 
Contact Person: 

 (Insert Name of Manufacturer or Service provider) (Seller)

Address: 
Email Address: 
Phone Number: 
Contact Person: 
Business Name and Address Provide manufacturer name and contact information
Order description   This includes the order details including the quantity and design specifications
Total Cost   Total amount in USD
Deposit  Amount   …………………………..   Date paid …………………………..  Deposit paid in USD and date paid.
Balance  Amount ………………………………   Date to be paid ………………….Balance to be paid in USD, including the expected date of payment
Payment DetailsPayment method   ……………………………………………………………   Account details   ……………………………………………………………   …………………………………………………………….Indicate preferred payment method and account details, for example; bank account.
Order delivery and turnaround time This provides the time within which the order will be delivered.   Order receipt confirmation Upon receipt of the order, the seller shall contact OS Furniture within three days with details on receipt of the order and willingness to execute it. The letter addressed to OS will provide a quotation for the product ordered and the expected time of completion, which should be as carefully matched to OS’ requested delivery time as possible. This will ensure timely delivery to customers.   Order delivery An agreement will be done within a maximum of three days after checking logistical issues, at which point a contract between the company and the manufacturer will be signed. The agreement must include the cost, and expected a time of delivery.    
Materials and inputsManufacturer to provide Special material specificationsPlease circle appropriately. The manufacturer is responsible for sourcing materials unless otherwise requested by the customer. In such an event, special arrangements will be made.  

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Returns and cancellations

The manufacturer shall provide a return period during which any modifications can be made to ensure standards are met. If the order does not meet OS’ specifications, OS shall issue a refund notice. At this juncture, the manufacturer can choose to redo the order if there is adequate time. If there is no time, the manufacturer will make a full refund to OS.

Agreement

I agree that the above conditions are clear and understand that this is a binding contract.

Signed

  1. Manufacturer

Name of Manufacturer or Service Provider ………………………………………………………

Signed by ….……………………………………………………………………………………..

Title ………………………………………………………………………………………………

Date ………………………………………………………………………………………………

  • Outside Settings

Signed by …………………………………………………………………………………………

Title ……………………………………………………………………………………………….

Date ………………………………………………………………………………………………

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B.

Image Painting

Standard Form Sales Contract for Painting Work

This is a binding contract. The seller and customer, by signing this contract acknowledges that the painting service will be delivered and paid for under the conditions presented herein.

This is a contract between the two parties indicated below.

Outside Settings (Seller)

Address: 
Email Address: 
Phone Number: 
Contact Person: 

 (Insert Name of customer) (Buyer)

Address: 
Email Address: 
Phone Number: 
Contact Person: 
  Description
Product specifications    This includes the order details including the quantity and design specifications. Important Note Ensure description is comprehensive and covers all the requirements including design preference, materials, size, quantity, and others Sample picture may be attached.
Total Cost   Total amount in USD
Deposit  Amount   …………………………..   Date paid …………………………..  Deposit paid in USD and date paid. Note: Deposit should be half or more of the set price
Balance  Amount ………………………………   Date to be paid ………………………………….Balance to be paid in USD, including the expected date of payment   Note: Balance to be paid before or during delivery
Date of delivery/collection  Date ……………………………………………………     Delivery   Insert delivery address   ………………………………………………………………   ………………………………………………………………   Collection   Preferred date of collection   ……………………………………………………………..-This refers to the agreed date of collection of completed custom-made furniture. -A date range may be provided -Collection is based on completion of payment and furniture will only be collected when the balance is paid -Specify whether furniture will be collected or delivered (please circle tick accordingly)

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Cancellation policy

Order cancellations can only be made within ten days after the order has been made. In this case, a fine of 10% of the total order amount is applicable. If cancellation is made after ten days, a fine of 50% applies to enable the company meets associated losses. Failure to collect furniture within 30 days once due will attract a fine of 100%.

Returns policy

The customer has a right to make returns to correct any design defects. This will be done at no extra cost. To benefit from this provision returns reported within two weeks of delivery and executed within 30 days. After 30 days, the customer will need to pay an extra fee for repairs and transport. Where the client is not satisfied, he or she must prove without reasonable doubt that the design specifications were not met. In that case, up to 100% may be refunded.

Agreement

I agree that the above conditions are clear and understand that this is a binding contract.

Signed

  1. Customer

Name of Customer …………………………………………………………………………………

Signed …. …………………………………………………………………………………………

Date ………………………………………………………………………………………………

  • Outside Settings

Signed by ………………………………………………………………………………………….

Title ……………………………………………………………………………………………….

Date ………………………………………………………………………………………………

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C.

Outside Settings

Standard e-contract form for internet sales

  Description
Name of Customer Insert full name
Address Insert full address
Telephone number Insert telephone number
Product  and quantity  Serial NumberQuantityInsert serial number (s) of the product as provided on the website.
1. 
2. 
3. 
4. 
5. 
6. 
7. 
8. 
9. 
10. 
Total Cost   Total amount in USD
Payment details  Amount   ……………………………………………..   Date Paid ……………………………………………..   Receipt Number/Payment Confirmation   Details ………………………………………………..   …………………………………………………………….  Provide payment details in USD including the amount, date and receipt number or payment confirmation details from the website.   Payment shall be made in full before delivery
Delivery Insert delivery address   ………………………………………………………………   ………………………………………………………………   Preferred Date (after seven days) ……………………………………………………  Delivery will be made within 5-7 days after order receipt. Customer to provide preferred delivery address and date. Note: The preferred date is only applicable when delivery is made after the 7th day. -Specify whether furniture will be collected or delivered (please circle tick accordingly)

Cancellation policy

Order cancellations can only be made within three days after making your order. No charges are applicable in such circumstances. Orders canceled after the three days will attract a fine of 20% of the total order amount to cater for logistical losses. Orders canceled during or after delivery will attract a fine of 50%. Refunds will be made less the amount fined.

Returns policy

The customer has a right to make returns to correct any design defects. This will be done at no extra cost. To benefit from this provision returns reported within two weeks of delivery and executed within 30 days. After 30 days, the customer will need to pay an extra fee for repairs and transport. Where the client is not satisfied, he or she must prove without reasonable doubt that the design specifications were not met. In that case, up to 100% may be refunded.

Agreement

 I agree that the above conditions are clear and understand that this is a binding contract.

Please tick above if you agree.

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Part II

Memorandum

To: Outside Settings Co-owners

From:  …………………………… (insert name)

Date: April 8, 2018

Subject: Standard Form Contracts and How they Will Help Prevent or Minimize Contract Disputes and Possible Liabilities and Losses.

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A.

LeRoy (2016) that a contract is a guiding document providing conditions under which two parties conduct business. The contract forms the basis upon which any complaints and liability cases are addressed. Accordingly, the standard form sales contract will be instrumental in minimizing contract disputes and possible liabilities with furniture manufacturers after purchase. The contract is an agreement between Outside Settings (OS) and the manufacturers which must be signed before the delivery of goods.

This way, the company will be sure that the manufacturer has received the order and that the furniture will be delivered promptly. It also provides the periods of correspondence during which the order with the manufacturer is made, as well as the delivery period, thus ensuring that customers’ orders are delivered promptly (Goldberg, 2015). This will also avoid cases of lateness and instances where furniture is delivered after the customer cancels their order, thus leading to losses to OS.

B.

The standard form sales contract for painting work will set clear standards on the obligation of the company to deliver and also ensure that customers can keep their end of the bargain (Wang, 2015)). Recently, the company has incurred significant losses due to the cancellation of custom-built furniture, which ends up being sold at lower prices than they originally cost. The contract indicates that the customer ordering for painting work must commit to payment of the painting if they order is not canceled within the stipulated time.

Long Champ (2017) notes that a contract should seek to minimize liability through protecting the company in the form of clear clauses on possible areas of liability. In this case, OS will also avoid liabilities that may arise from customer complaints because all matters related to the order will be based on the contract which the client has signed. Notably, details including costs, design specifications, payment, return, and cancellation are addressed in the contract, thus binding the buyer to the set conditions. 

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C.

Internet sales may present significant challenges because there is no physical contact with the customer and transactions are mainly built on trust. The standard form e-contract will solve this problem by providing a binding agreement between the OS furniture and the online clients, thus making it more reliable than before (Legaline, 2017). Online business is often characterized by the existence of non-serious buyers and having a contract increase chances of transacting with genuine buyers.

This will prevent losses to OS through defaulted payments and canceled orders. Unlike in previous orders, the contract will also include additional client details to ensure that OS can efficiently track down defaulters. The e-contract provides conditions for shipping, a return policy and cancellation policy, which further promote a commitment by buyers (Ciacchi, 2016).

It also shields the company in that any losses in logistics are covered through the fines imposed under the returns and cancellation policies. Clear guidelines on dates of the delivery amount paid and applicable fines ensure that contract disputes and potential liabilities are avoided. The fact that OS offers a return policy also means that customer trust is enhanced.

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References

Ciacchi, A. C. (2016). Contents and Effects of Contracts-Lessons to Learn From The Common European Sales Law. London: Springer.

Goldberg, V. P. (2015). Rethinking Contract Law and Contract Design Rethinking Law series. Cheltenham, UK: Edward Elgar Publishing.

Legalline. (2017). Contracts made online. Retrieved from www.legalline.ca/legal-answers/contracts-made-online/

LeRoy, R. (2016). Business Law Today, Comprehensive. London:  Cengage Learning.

Long Champ. (2017). Chapter 3: The law of contracts. Retrieved from www.longchamps3e.nelson.com/instructor/03Ch03.pdf

Wang, F. F. (2015). The incorporation of terms into commercial contracts: a reassessment in the digital age. Journal of Business Law (2015), 1-27. Retrieved from bura.brunel.ac.uk/bitstream/2438/11004/1/Fulltext.pdf

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Contract Law Assignment

Contract Law
Contract Law

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Contract Law

Purpose

The purpose of this project is to create a plan that demonstrates your understanding of contract law. 
The project requires you to identify and analyze legal issues and to make recommendations based on one or more fact patterns. These issues will relate to the concepts covered in weeks 4 and 5 about contract law.
You will also develop skills in developing a PowerPoint presentation, in writing a summary report and using critical thinking to write an in-depth comprehensive analysis.

Outcomes Met by Completing this Assignment:

Recommend appropriate actions in the business environment based on an understanding of sources of law, legal process and procedure, and available remediesanalyze contractual rights, obligations, liabilities, and remedies in the business environment

For Project 2

You may search the internet for sample contracts, but not copy/paste form contracts from internet.The project contracts are to be relatively simple, straightforward and reflect all facts included in the scenario, but only the facts given – it is best to not “over think:” or make the assignment overly difficult.Please review the assigned materials for details about what is to be included in sales contracts.

The best e-contracts are relatively simple, straightforward, clear. Many of you will have been a party to an e-contract, so you can apply your experience, as well as assigned material to create a sample e-contract for the facts given.Contract typically should be specific, very clearly written, and not too complex.

Read the Following Background Information:

The PI owners are anticipating that as the business begins and becomes busy, potential contract-related problems and disputes could arise from purchases of paints and supplies from Naturals, and from sales of supplies and paints to local and internet customers.

For example, the PI owners know from their prior business experiences, that hassles often develop with manufacturers when a company places an email purchase order to which the manufacturer does not reply, but simply ships nonconforming goods or ships orders too late to meet customer needs. Another problem area is related to internet sales where customers often claim the sales contract is confusing or incomplete sometimes resulting in mistakes in orders and cancellations. 

These problems can be time-consuming, detrimental to the bottom line, and can create damaging publicity and a negative image for any business.

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Pat and Gale, the lead consultants working with the PI owners, and you, along with the PI owners, Jo, Maddy, and Taylor have discussed these problems and the need to minimize disputes and liabilities for PI arising from its contract agreements.
After several meetings, Pat and Gale ask you to develop sample form contracts designed to minimize contract sales disputes and possible liabilities for PI.

Instructions

There are two parts to this project. In the first part, you will create two (2) sample contracts. In the second part, you will write a brief memorandum.

Part I

Create the following two (2) sample contracts for PI that are all consistent with UCC rules regarding sales.

A. Create a standard form sales contract to be used to purchase an order of paint from Naturals.
B. Develop a standard e-contract form for internet sales of paint sold by PI to internet customers; include shipping policies and procedures. (PI will be reselling paint it purchases from Naturals via the internet.)

DO NOT use standard form contracts from the internet; this will be obvious and will not receive credit.

Part II: 

Write a brief memorandum addressed to the PI owners. Write in depth, comprehensive analysis and explanations to support conclusions.

Explain the following: 

Analyze and discuss how the standard form sales contract (created in Part 1. A. above) for purchase of paint from Naturals will help prevent or minimize contract disputes and possible liabilities.Analyze and discuss how the standard form e-contract (created in Part 1. B. above) for internet sales of PI paint will help prevent or minimize contract disputes and possible liabilities and losses.

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Format for Report

Create a Word or Rich Text Format (RTF) document
Double-spaced, 12-point font, Arial or Times New Roman
No page requirement
Include title page with your name, course/section number
Use in text citations
Include a References list of cited resources
Write clearly and concisely.

Use the given scenario and facts to create the sample contracts; do not use contract forms from the internet – that will be obvious and may result in grade penalties.
Label each part as follows: 

Part I
A.
B.

Part II
A.
B.

Review the Contracts and Memorandum

Thoroughly read the contract and memorandum to ensure all required elements are present. Use the grading rubric to ensure that you gain the most points possible for this assignment.

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The Debate Concerning the Legalization of Marijuana

Legalization of Marijuana
Legalization of Marijuana

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The Debate Concerning the Legalization of Marijuana

The debate for and against the legalization of marijuana remains highly contested and may be around in the long run. The federal government, for instance, champions the view that seeks to criminalize marijuana as the basis for increased criminal offenses (Bakalar et al. 1995). On the contrary, the proponents of marijuana usage allege that the positive effects outweigh the negatives.

Thus far, the two extremes have been so passionate in supporting their perspectives with concrete arguments.  Despite the heated debate surrounding marijuana, it is only fair to support the school of thought that seeks to decriminalize the use of marijuana for health reasons. In this paper, I will support the argument that marijuana should be made legal on medical grounds.                                                                                                                                            

By August 1999, states such as Alaska, Arizona, California, Oregon and Washington have passed statutes to decriminalize marijuana use for medical reasons. This has seen more than 20 states pass laws that legitimize marijuana usage for medical therapy. Terminally ill patients have benefited widely from these passages. Nonetheless, many people in states that stand opposed to the marijuana use have been dying in their numbers. Ironically, does it, therefore, mean that states in which marijuana has been made legal are mindful of people’s welfare than those that criminalize the substance?

Legalization of Marijuana

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One of the leading factors, why marijuana should be legalized, is due to endorsement by medical experts. In a previous survey conducted by American Society of Clinical Oncology, for instance, 1,035 members provided extraordinary views. About a half of the physicians indicated that they would prescribe marijuana only if it were legalized while 40% reported that they have already prescribed to patients. If doctors are prescribing marijuana, then it is evident that it is effective when it comes to treatment of certain illnesses.

Furthermore, the majority of physicians believe that marijuana is an appropriate anti-emetic. This is of great importance due to severe dehydration associated with emesis or commonly known as vomiting. Medical experts are permitted to recommend narcotics as pain relievers like ephedrine widely known to lead to death in the case of an overdose; nonetheless, they are not allowed to prescribe marijuana even it has not proved to cause death (Kassirer, 1997).                                                                                                 

Scientists have demonstrated that marijuana is effective in treating terminally ill patients as a result of its active ingredient or THC chemical. Cancer Patients have learned that marijuana is considerably effective in reducing adverse effects of chemotherapy. Again, multiple sclerosis that is associated with painful muscle spasms, and vertigo that make life unbearable. Some patients allege that marijuana is effective in reducing this pain (Gorodetzky, 1997). Although, there are medications for relieving multiple sclerosis pain, the majority prefer marijuana to reduce their suffering. This is because such medications lead to severe adverse effects, which are not evident with marijuana.

Legalization of Marijuana

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While science has provided a way of making synthetic THC, promoted as Marinol, it’s very costly and seems to lead to significant levels of anxiety and depression (Kassirer, 1997). Other adverse effects of synthetic THC include severe dizziness and unstable gait. Much as these negative effects can be challenging to handle, doctors should prescribe a pill for relieving such effects.

The application of marijuana for medical reasons is a highly debated topic fueled by divergent opinions. These different views stem from the controversy concerning the utilization of an illegal drug for medical reasons. While many people oppose the medical use of marijuana, the other side of the divide has strong proponents who support the use of marijuana for curing chronic diseases. 

For hundreds of years, marijuana has been used to ease the pain. With this in mind, modern doctors and scientist think that those opposed to the use of marijuana, are either ignorant or blatantly overlooking the value it presents to the medical world.  People suffering from cancer, multiple sclerosis, and AIDS acknowledge the fact that marijuana drug offers them the much-needed therapy (Gorodetzky, 1997).

References

Bakalar, James B., M.D., Grinspoon, Lester, M.D (1995). “Marijuana as Medicine: A Plea for Reconsideration”, Journal of the American Medical Association, 21 June: Vol.273 No 23

Gorodetzky, Charles (1997). “Marijuana”, Grolier Interactive Encyclopedia, CD-ROM, Gwynne, Peter, “Medical Marijuana Debate Moving Toward Closure”, The Scientist, 31 Mar. 1997: Vol.11 No 7

Kassirer, Jerome P., M.D. (1997). “Federal Foolishness and Marijuana“, the New England Journal of Medicine, 30 Jan. 1997: Vol.336 No 5

Legalization of Marijuana

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