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 3rd 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
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