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.
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
