How to answer civil litigation exam questions

Civil litigation exam questions are multiple choice “single best answer” questions, in the main. This means that all the answers have the potential to be correct, but that one answer is more correct than the others. Sometimes the reason will be strictly legal; the requirements the court must meet are most precisely stated in one answer compared to another. Sometimes the answer is predicated on an understanding of the case law alongside the relevant Civil Procedure Rule, meaning you need to have read and revised the White Book commentary which is on syllabus. 

 

 

The factual scenario in a question is often neglected by candidates. Candidates often think there is insufficient time to properly read and analyse the scenario. Equally, candidates may read the scenario and do not know where to start with it.

This blog post is an attempt to flag up some of the things to look out for when reading a question to help you diagnose the type of litigation problem the client has, and how it may be solved.

Step 1: Initial thoughts

Read the factual scenario

Who am I for?

What is the cause of action?

What do you know about the prospects of success in your factual scenario, thinking about the cause of action, its elements and possible defences? Carry out some preliminary case analysis. It will help you to have a working knowledge of the elements of negligence, conversion, breach of contract, misrepresentation, nuisance, and the main defences to each.

Is this a type of case which has special procedures or a specialist court? (eg, PI, Fatal accidents, Construction cases).

Step 2: Where are we in the timeline?

Pre Action cases

If no proceedings have been commenced yet, are we dealing with a Pre-action protocol or the reasonable pre-action process?

Where have we got to in the relevant pre-action procedure?

What comes next?

What are the ADR prospects? What might be an appropriate means of achieving settlement?

Is limitation close to expiring? Think carefully about the principles on accrual of the cause of action.

Is there any deferral of limitation possible (eg, S33 disapplication, S14 date of knowledge, S14A latent damage…)

Where proceedings have been commenced

Are proceedings on foot? [Knowing how the service rules work is fundamental.]

What stages of the proceedings are we at?

What comes next? [Make sure you have a timeline in your head of how a case progresses from Issue of the claim form through to Enforcement at the very end.]

Step 3: problem solving

What is the client’s problem (eg, urgent need to stop harm occurring, need more time to serve claim form, need to know identity of tortfeasor, need documents from a 3^rd party, the other side has withheld evidence...)

Which tool in the civil litigation toolkit might help?

Is it available at this stage of the proceedings?

Step 4: assessing the procedural solution

What is the legal test? [Check rule, case law and practice direction].

What are the procedural requirements? [Notice, evidence].

How does the Overriding Objective apply to the facts of the case? [How much is at stake, likely costs, complexity, time to be taken in trial, etc. ] Too many of my students do not actually bother reading through Part 1 of the Civil Procedure Rules, despite the fact it is the Overriding Objective – therefore more important foundational principle in all of civil procedure.

What are the likely costs consequences?

Has an application be made?

Any possible cross application?

Are there any issues relating to… which court, allocation, differences in procedure between SC, FT, MT, CC, HC, Specialist court, SC applicable here?

Step 5: endgame thoughts

What happens post-application?

What happens post-trial?

What about appeals? Second appeals? Time limits for appeals? Legal test?

What about costs?

What about enforcement?

Chronologies

Many students are reluctant to draw up a quick chronology to help them answer a question. Often, being able to see the order of events clearly will help you ascertain the answer. 

Chronologies will help with questions relating to:

1. Service and validity of Claim form

2. Limitation

3. Strike out for non compliance with a rule, PD or order

4. Unless Orders  

They can also help with questions which have a lot of information in them which is jumbled and out of sequence. 

Final thoughts

You need to look at your problem question with an analytical eye, using your powers of case analysis to find the right answer.

If you just skim the facts and rush to answer, there are important factual clues you might miss out on which should influence your answer. 

Try to use the system described above for every question you deal with; make this system part of your thinking process.

The more natural it becomes, the less you need to remember each of the steps. They will become part of your legal problem solving thinking, which will mean you don’t have to consciously think through this process in the exam, it will have become part of your thinking system.

Don’t forget to cover all of the syllabus, and to be guided by the syllabus to identify what you need to learn and what you can omit or skim. As always, I advise you make full notes on everything you might be examined on. Make notes so that they make sense to you. Handwritten is best, but computer notes if you must. Research shows students remember more of what they write out by hand.

Good luck with the civil litigation assessment.

Snigdha Nag

December 2020

The legal test in civil submissions

The legal test in civil submissions

Introduction

When you are making an application in a procedural matter, there is always a “legal test”. This is what the advocate must ensure they have fulfilled in order to get the order they are seeking.

This means you must: 

Meet the requirements which may be procedural, time limit based, merit based, evidential or a combination of all of these.  

This means you need to know: what are the procedural requirements, when can an application be made, what is the level of merit required to be demonstrated, do you have the forms of evidence required, how does your evidence demonstrate the facts you wish to rely upon.   

What are the issues the court will be looking for when considering the facts and evidence in your case. These are questions requiring detailed consideration, planning and possibly legal research. 

-    You must also discharge the burden of proof for the order sought.

How do I work out what the legal test is?

The starting place for civil cases is the Civil Procedure Rules. You need to look up the relevant rule for the application you are making.

If you are lucky, the rule will tell you what the court is looking for in order to grant your order. These are what I call “useful rules”.

If you are not so fortunate, then you will need to look somewhere else. This might be: The Practice Direction to a particular rule, or the White Book commentary (which summarises the case law). You are looking for information which tells you either what the court is looking for, or the requirements for an order to be made. Be careful when examining the wording, as the detail matters. Check of the wording as clarified in the case law, too.

Examples: a useful rule and a not-so-useful rule

Rule 6.15 for alternative service is an example of a useful rule. It tells you that you need to show a “good reason” in order to get an order for alternative service. It isn’t a perfect rule, because before you make an application under this rule you need to have shown that you have made reasonable efforts to find the Defendant’s current address, and you also need to show that the method of alternative service you are proposing is likely to result in the Claimant actually receiving the Claim Form. This information comes from elsewhere, which is why the reminder to check the case law, the White Book commentary and the Practice Direction for your relevant rule is all the more important.

By contrast Rule 7.6(2) for extending an already valid claim form, is not a useful rule. It doesn’t tell you what you must show the court in order to get your order. You need to read the White Book commentary at 7.6.2 to find out what the court is looking for.

As you progress through different submissions, look at the rules carefully and decide if they are a useful rule or a not-so-useful rule. This will help you not only for civil advocacy submissions, but also civil litigation.

Understanding your legal test

Once you found the legal test, you need to work out what it means.  This can mean looking up case law to see what guidance has been given on the meaning of the words in the rule or the PD.

For example, for setting aside a default judgment or obtaining summary judgment, the court needs to look at whether there is a “real prospect of success”. But is that a high or a low test? What is meant by “real”? Swain v Hillman [1999] EWCA Civ 3053 says that “real” means “realistic as opposed to fanciful”. If something is fanciful, it exists only in the imagination, it is imaginary, impractical, whimsical. It isn’t realistic. That doesn’t mean that “real” means the case is very strong, just that is has some reality to it. It’s therefore not a high bar.

On the other hand, to obtain an interim payment, you need to show that the claimant “would obtain judgment for a substantial sum of money”. Let’s forget the “substantial sum” part for now. What does “would obtain judgment” mean? It means that the claimant would win at trial if we were using the document in front of us today, or that the claimant can prove they would succeed on the balance of probabilities on the papers they have put before the court. That is a much more stringent test.

Remember, the more stringent the test, the stronger your arguments must be, and the more you need to persuade. You will need to put together arguments based on legal principle, facts and evidence.

Building your arguments

You will then need to build your arguments to fulfil all of the elements of your legal test. You will need to think about your client’s case. You will also need to deal with your opponent’s case – you cannot ignore the other side has facts, evidence and a set of arguments. You need to neutralise these.

You will need to think about which facts are in your client’s favour. You will need to identify evidence which supports your client’s case. You will then start the business of crafting your arguments. Crafting persuasive arguments will be the subject of a future blog post.

If you want to learn how to start your civil advocacy submission, you can find out how here: http://snigsclassroom.blogspot.com/2019/10/starting-your-civil-submission.html

What to do in reading week

This blog post is for students on the Bar Course. I am most aware of the course design of the BVS at City Law School. However, there should be general advice which applies to other providers. 

 

The course has been going for seven weeks now, and you should be fully familiar with the Virtual Learning Environment (VLE), the modules you are currently studying and the overall course design. Well done for making it this far. It has not been easy. 

I hope you will not mind me giving you some advice for reading week?

I am going to suggest that you catch up on anything you have fallen behind on in your skills. Once you have done that, I am going to suggest you spend the majority of your time on the knowledge subjects.

If you have not already done so, I strongly advise you to start to make your revision notes. Ideally you shouldn’t have two sets of notes – in course notes and revision notes. You should be trying to make a single set of notes ready for when study leave starts.

I am aware that if you are learning online, you will have a great many learning materials online. Because everything is on the VLE, you can convince yourself that there is no need to make any notes. But given the size of each knowledge subject syllabus, you will have a lot of work to do in your revision period to reacquaint yourself with these materials. You need to organise the information in a way which means something to you, rather than rely on materials created by someone else to achieve the best understanding.  

How should you make your revision notes for the knowledge subjects? Do this by sorting out the information under headings from the syllabus (go through the syllabus carefully, ticking off what you have covered in your notes). Have it with you on the desk when you work. Always use the syllabus. Cover any gaps you have missed.

Always double check which rules, PDs, and paragraphs are on syllabus. Check which cases are on syllabus – download the judgment, make bullet point notes about the main points made in the judgment and keep those safely. You do not want to go back to reading the whole judgment in the revision period – ensure your notes cover enough that you don’t need to revisit the judgment text.

I CANNOT say this enough, reading and re-reading through the text book is never going to be enough for you to pass. Reading and re-reading also gives a false sense of security – you feel familiar with the material, but don’t actually retain the information.  You will need to learn from a set of your own notes.

For civil litigation, use the Moodle podcasts and videos, your notes from SGS, your reading from the White Book and APA Civil (Sime) to make your notes. You ideally want all these different sources of information in one set of notes. Be Civil by Virginia Dunn is also a great primer text.

You will need several different note making techniques, as no single one will be right for all of the information.  Strip out the detail you don't need - you don't need to know rule numbers, PD paragraph numbers or any cases other than the 6 on civil litigation syllabus.

Try to shorten down the WB commentary to bullet points. Once you have done this, you don’t need to worry about it again. All you will need to do is revise from your notes.

For criminal litigation, use the Moodle materials, Blackstone’s Criminal Practice. It’s Criminal by Virginia Dunn is a very good primer text.

For ADR, check the syllabus carefully, and make notes from the Jackson e-book. Don’t forget you may need to check the PI Protocol, the PD on Pre-Action conduct and the judgment in Halsey.

For ethics, start with the Bar Standards Board (‘BSB’) handbook. However, you will also have to refer to the Code for Crown Prosecutors and the Farquharson guidelines.

Try where you can to draw up flow charts: http://snigsclassroom.blogspot.com/2015/03/go-with-flow-flowcharts.html

You will know I love diagrams - see which elements of the information can be reduced into simple diagrams. It doesn’t matter if they are silly!

Record cards to test yourself are useful: http://snigsclassroom.blogspot.com/2015/03/for-record-record-cards.html

Comparison charts can help you quickly compare and contrast things - eg Default judgment, summary judgment and setting aside default judgment.

Think about using self-testing as a learning technique. You can do something as simple as covering up your notes and seeing how much you remember. Or you can go back over class questions, particularly the multiple choice best answer questions from your previous classes. Self-testing will help you train your recall and help you remember more. Students are generally scared of testing themselves, because they are worried they won’t get all the answers right. But you are testing yourself to train the recall process at this stage, not to gain the pass mark. All the best quizzers (some who have won a million pounds!!) test themselves constantly.

Here is some food for thought on learning techniques which are supported by educational research: https://theconversation.com/3-ways-to-study-better-according-to-cognitive-research-140230

You might want to read this blog post, written by Brian Mondoh on how he succeeded in getting though the BPTC: https://snigsclassroom.blogspot.com/2017/12/nuggets-of-wisdom-for-smashing-bptc.html

Please, try to catch up on your sleep. Do have at least one day free of the BVS and law. Look after yourselves!

See you when we return in the week commencing 2 November 2020!