Using the case law in civil advocacy submissions
You may find that there is relevant case law you will want to refer the judge to in a civil procedural submission.
This case law can serve several functions. You need to be familiar with the principle established by the case, and how it serves the function below which you need to achieve. How you use the case will depend on the function the principle will serve, as you will see below.
The functions case law can serve are as follows:
Sets
out the court’s approach.
Where one of the rules do not actually tell the court how to approach the application being made, you need to check either the case law or the Practice Direction for the “thinking process” of the court. A good example is applications for extension of the validity of a claim form whilst the CF is still valid under 7.6(2). A good reason needs to be established, and the better the reason, the more likely the extension will be granted, please see the White Book Volume 1 commentary at 7.6.2. The principles for the grant of an Interim Injunction set out in the landmark case of American Cyanamid v Ethicon is another example.
Establishes
either the burden or standard of proof.
The general civil burden is allocated on the basis that “he who asserts must prove”. The general civil standard is on the balance of probabilities (it is more likely than not). However, there are some applications where the case law gives guidance on either the burden or standard of proof. An applicant will want to argue this has been met, obviously. The respondent has the possibility of not only arguing rebuttals on whether the legal test was met (arguing that the applicant has not made out the grounds for an order to be granted), but also arguing that the applicant has failed to discharge their burden to the appropriate standard.
Helping
the court understand the legal test by offering guidance on the meaning of the
rules.
The phrase “Real prospect of success” as used in applications for either setting aside of default judgment or an application for summary judgment is defined in the case of Swain v Hillman. Therefore you need to know how the court defines “real” as it is different from the meaning in the ordinary world of common parlance. In Swain v Hillman, real was defined as “realistic as opposed to fanciful”. Something which is fanciful is far fetched or unlikely. Therefore you will need to use the facts and evidence to demonstrate realistic chances of success which are not fanciful or far fetched if you are for the applicant. The respondent on the other hand needs to undermine the strength of the applicant’s case to show it is far fetched, unlikely and unrealistic either factually, evidentially or legally.
Where
the case law is an important procedural authority.
Denton v White is an example of this, as this case represents judicial guidance with wide applicability (here it is relief from sanctions and all implied sanctions). The three stage approach to relief from sanctions is contained in Denton, meaning that any application for relief from any sanction (including implied ones) have to cover all three stages. But Denton also deals with other fundamental principles, like dissuading opportunism by innocent parties in obtaining a litigation advantage against a defaulting party.
Where
a case clarifies confusion which existed in a particular area.
Denton
v White offered important clarification of the approach to relief from
sanctions in Mitchell v News Group Newspapers.Therefore it needs to be drawn to the court's attention and the main principles from the case need to be outlined to the court.
What you need to do in your oral and written advocacy
You need to therefore be aware when considering
the application you are making, what case law is relevant and which function
the case law fulfils. You may also need to read the original case rather than
just rely on the brief summary in the White Book commentary.
You can refer to the White Book commentary if it sets out the matter in enough detail, but don’t forget to cite the relevant paragraph of commentary in both your skeleton argument and oral performance and don’t forget to present it as being commentary rather than the rule. Case law reports are a primary source, but the commentary although learned, is a secondary source; it was compiled by the editors of the White Book.
When you are relying on case law you will need
to cite it in the skeleton argument. The judge and the opponent cannot be
“taken by surprise” by the sudden citation of cases in oral submissions
delivered without warning. Letting the judge know in the skeleton argument
helps the judge form a preliminary view. Informing your opponent is a
professional courtesy required in the interests of justice. [You may want to append the relevant headnote and relevant paragraphs of the judgment to your skeleton argument as appendices.]
When structuring your skeleton arguments and submissions it is important to think about where best to include any case law that you want to draw to the judge’s attention.
As a general rule, where you intend to make any arguments on the basis of the case law (particularly say if you are deploying it to help the court understand the legal test), it is better to include relevant case law as part of your ‘submissions section’ rather than under the ‘legal test section.’ If you include case law for this reason under the legal test it will appear ‘orphaned’ from the facts of the case and therefore it may not be clear to the judge how it relates to the arguments that you are making.
However, for other uses of case law then it may well be better to include as part of the legal test. Where the case is an important procedural authority – as in Denton v White – which sets the parameters for the arguments that you will need to make, then it is important to include this as part of the legal test to give the judge the framework for analysing your submissions.
Reflecting on how and why you are using the case law, using the guidance above, should help ensure you deploy it in writing and oral submissions to maximum effect
Please also, where you cite case law, remember to give:
1. The full case name and citation
2. The principle of law established by that case
3. Apply that principle explicitly to your case
4. Please avoid using civil procedure cases dating
from before 1998 and the Civil Procedure Rules, as the rules themselves
changed. (Unless this authority is vital, or your only option; Norwich Pharmacal and American Cyanamid v Ethicon are examples of pre-98 case law you would definitely need to rely on in the relevant applications.)
Don’t just recite the facts of the case. Many students do this – or they rely on the outcome of the case. Never forget that your case may have different facts, and you cannot ask the judge to impose the same outcome without having good reasons. Use the principle established by the case. If needed refer the judge to the relevant paragraph of the judgment. You should then explain how the facts and evidence in your case should be interpreted in the light of the principle you cite. Draw the judge to the conclusion to be drawn, don’t just “hint” at what you want the judge to decide.
Further reading:
The legal test in civil submissions: https://snigsclassroom.blogspot.com/2020/11/the-legal-test-in-civil-submissions.html
Starting your civil submission: https://snigsclassroom.blogspot.com/2019/10/starting-your-civil-submission.html
This blog post was written with the kind assistance of Jonathan Waghorne, a current BVS student. Thanks to him for reading a draft of this blog post, and thank you for writing the paragraphs on where to include the cases in the skeleton argument.
