Fact Finding

(SQE Advocacy Assessed skill - see www.sra.org.uk)

A competent advocate will be able to:

• Obtain clear instructions from the client.

• Be prepared to assess whether the client's goals are realistic and achievable.

• Learn the facts of the case and know them well.

• Assess what they know about a case by putting the key issues and dates in order of when events unfolded.

• Identify what they do not know and list these and then obtain the further infor­mation that they need to progress the case.

• Analyse the ‘What', ‘How' and Why' of the case from the facts.

• Be clear about which issues are in dispute and which are not.

• Collect relevant and admissible evidence as soon as possible.

• Know when it is appropriate to seek expert evidence to support the client's case.

Legal Research

A competent advocate will be able to:

• Find a corresponding legal issue or principle for each factual issue.

• Support the legal issues identified with relevant authorities using sources of law such as case law, legislation, Conventions etc.

• Identify the correct resource that will help to support the legal points that are to be made in argument.

• Cite cases in the format required by the Practice Direction: Citation of Authorities 2012.

• Be clear about the legal principle (ratio decidendi) that arises from all cases used to support an argument.

• Always be clear as to the original intention and purpose of the legislation that is used to support the case presentation.

• Use statutory interpretation to argue different possible meanings to legislation, where it is relevant and appropriate to do so.

Case Planning

A competent advocate will be able to:

• Be clear about all elements of the charge/claim.

• Identify the correct court and jurisdiction for the case.

• Explore possible defences or remedies.

• Explore alternative dispute resolution with the client in a civil case.

• Carry out a risk-benefit analysis before taking a course of action.

• Assess how they will bring the case to a conclusion.

Key Practice Case

Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537

This is an important case as it was the first time the Court of Appeal was called upon to consider the question of enforcement for lack of compliance with court procedural rules. The rule in question in this particular case was the Civil Procedure rule CPR 3.9. The court had to consider whether the practice should remain that non-compliance of a court rule might be excused if it could be rem­edied by alternative means, for example, by the court issuing an appropriate direction about future preparation of the case or by a wasted costs order.

The facts of the case concerned the claimant, a former Chief Whip of the Conservative Party who had brought libel proceedings against the Sun Newspaper who in turn had published allegations that the claimant had berated police officers at the entrance to Downing Street and had used foul language to do so.

The judgement itself arose from a dispute relating to a decision made in a costs budget hearing at the conclusion of the main libel action. It was alleged that the claimant had failed to provide a costs budget within the required timeframe and was therefore in breach of Practice Direction 51D. The Practice Direction stated that a breach would lead to a sanction but did not stipulate the nature of the sanction. The Master in the High Court costs hearing imposed a sanction limiting the claimant’s claim for costs to the amount of court fees only. This was done by using CPR 3.14 as an analogy (although it did not cover the type of application in question in this case). The claimants appealed.

The Court of Appeal, in dismissing the appeal, took the opportunity to offer guidance as to when and to what extent sanctions should be imposed for non­compliance of a procedural rule:

1.

2. If the non-compliance is ‘trivial’ (e.g. failure of form rather than substance, narrowly missing a deadline) then the court can grant some form of relief from sanctions.

3. If the non-compliance is not ‘trivial’ then relief from sanctions will not be automatic and the burden will shift to the party responsible for non-com­pliance to persuade the court, why sanctions should not be imposed.

4. In considering whether or not to impose sanctions the court will consider relevant issues such as (a) why the non-compliance occurred, (b) whether there are good reasons for the non-compliance, (c) whether those ‘good reasons’ were outside the control of the party in default, (d) whether the contemplated sanction complies with the overriding objective under CPR 1.

5. Missing a deadline due to pressures of work is unlikely to be regarded as a good reason.

Practice Tips

• Familiarise yourself with the facts and key events of your case so that you become an expert rather than a novice who merely has the background facts.

• To help you to identify at an early stage what evidence you will need to gather, prepare standard checklists for each type of case, e.g. civil, criminal, family, etc so that you do not forget to ask for key information from the client

• Take the time to plan the strategy of your case by considering possible and alternative courses of action by drawing a ‘risks’ table for each case.

• Identify any weaknesses in your client’s case and be prepared to deal with these in your case presentation by minimising those weaknesses.

• Boost the impact of your case presentation through evidence collection and document preparation - always take early drafts of witness statements (‘proofs’).

• Familiarise yourself with the pre-trial requirements of court procedural rules.

Practice Risks

• A lack of preparation or understanding of the case that leads to a detrimen­tal outcome for the client.

• Failure to anticipate alternative outcomes, solutions or actions in the case that leads to an improperly prepared case where the opponent has the ben­efit of surprising you.

• A misunderstanding of court rules and procedures that impacts on the preparation of the case causing delays or poor outcomes for the client.

• Misjudging the strengths of your case and ignoring or failing to deal with the weaknesses.

• Failure to seek expert advice or accept that certain matters are beyond your expertise - this could lead to a poor outcome for the client.

EXERCISE A

Test Your Knowledge - Problem Scenario

You have been instructed to act on behalf of ‘IMA’, which stands for Internet Meme Artists. This is a group of social media users who have formed a collective with the common purpose of exposing what they consider to be ridiculous ele­ments of humankind. They do this by using satire expressed through the use of memes. Memes are videos, images or text which have been modified to produce a humorous response in the viewer. IMA are crowd funded (raising finance from voluntary online contributions) and have produced a series of ‘memes’ which are now available as an App. They would like to advertise the App with a radio advert. The App contains 50 memes with the intention that more will be added in the future. The current version of the App contains one meme aimed at vot­ing systems generally. The meme is called ‘Coat My Vote’. The clearance centre for broadcast advertisement has refused to clear the advert for radio. The centre states that the advert “is wholly or mainly of a political nature and contravenes ss. 319(2)(g) and 321(2)(a) and (b) of the Communications Act 2003 when read together.” In particular, it is stated that the ‘Coat My Vote’ meme included in the App shows IMA’s true objects are political and fall under s. 321(3)(a) and (f) of the 2003 Act.

Read the relevant sections of the 2003 Act. Using statutory interpretation, set out three arguments that would support a case that s.

Go to Part C for a suggested answer.

EXERCISE B

Test Your Knowledge - Multiple-Choice Tests

Test One

You are acting for the parents of a child patient who is seriously ill in hospi­tal and is in a ‘minimally conscious state'. The hospital would like to withdraw treatment and allow the child to die as they believe that continuing treatment and prolonging the child's life is merely causing the child unnecessary pain. You have researched the case of Briggs v Briggs and Others that you wish to use the case in your skeleton arguments. The case has the following citations: [2016] EWCOP 53 and [2017] All ER (D) 02 (Jan). Which would you use? Choose ONE of the following:

1. [2016] EWCOP 53 only because this is the neutral citation and only neutral citations should be given in court documents.

2. [2016] EWCOP 53 only because this is the first year in which the judgment was reported.

3. [2016] EWCOP 53 followed by [2017] All ER (D) 02 (Jan) because where a law report exists, the neutral citation should be given first but then fol­lowed by the law report citation.

4. [2017] All ER (D) 02 (Jan) followed by [2016] EWCOP 53 because where a law report exists, the law report citation should be given first but then fol­lowed by the neutral citation.

5. [2017] All ER (D) 02 (Jan) because only the law report citation is needed.

Test Two

You are acting for a client in civil proceedings. A fact in dispute is whether your client hid any of his financial assets. You wish to instruct a forensic accountant to establish that your client has not moved any of his assets out of the country or placed them into offshore trusts. You are thinking of using your client's cur­rent accountants to prepare an expert forensic accountants' report. Which of the following is false? You can select more than one answer:

1. Forensic accountancy is a matter likely to be beyond the expertise of the trial judge and therefore it would be appropriate to use expert evidence.

2. Using the client's own accountant will save time and cost and therefore it is unlikely the court or the opposing party will object to their use as an expert.

3. An expert's opinion must be independent, objective and unbiased.

4. An expert's duty is to the party instructing them.

5. An expert will usually provide a written report for the court.

Go to Part C for the suggested answers.

Self-Reflection Checklist