Pupillage (Bar Vocational Stage) Civil Litigation, Evidence and Remedies Syllabus

What is the continuing duty of disclosure?

The duty of disclosure continues until the proceedings are concluded (CPR 31.11). If documents to which the duty extends come to a party's notice at any time during the proceedings, they must immediately notify every other party.

What is the general rule on the burden and standard of proof in civil proceedings?

Burden: "he who asserts must prove" — the party alleging a fact in issue generally bears the legal (persuasive) burden of proving it. Standard: the balance of probabilities, i.e. the fact is more likely than not to be true (more than 50%).

Distinguish the legal (persuasive) burden of proof from the evidential burden.

The legal burden is the obligation to prove a fact in issue to the required standard, fixed by law and decided at the end of the case. The evidential burden is the obligation to adduce sufficient evidence on an issue to make it a live question fit for the tribunal's consideration; it can shift during the trial and does not determine ultimate liability.

What is the difference between relevance and admissibility of evidence?

Relevance is a question of logic: evidence is relevant if it makes a fact in issue more or less probable. Admissibility is a question of law: whether relevant evidence is permitted to be received by the court. Evidence must be relevant to be admissible, but some relevant evidence is excluded (e.g. by privilege or an exclusionary rule).

How is hearsay evidence treated in civil proceedings under the Civil Evidence Act 1995?

Hearsay is admissible in civil proceedings and is not excluded merely because it is hearsay (s.1 Civil Evidence Act 1995). Safeguards apply: notice may be required (s.2), the other party may apply to call the maker for cross-examination (s.3), and the court weighs reliability using s.4 factors (e.g. why the original maker was not called, contemporaneity, motive to misrepresent).

How is witness evidence normally given at trial under the CPR, and what is the status of a witness statement?

A witness's written statement stands as their evidence-in-chief at trial (CPR 32.5), unless the court orders otherwise. The witness is then tendered for cross-examination. Statements must contain a statement of truth; a false statement made without honest belief in its truth may be contempt of court.

What is the function of a statement of truth, and what is the consequence of a false one?

A statement of truth verifies the honest belief in the truth of the facts in a statement of case, witness statement, or other document (CPR Part 22). Proceedings for contempt of court may be brought against a person who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

What is legal advice privilege, and what communications does it protect?

Legal advice privilege protects confidential communications between a client and their lawyer made for the dominant purpose of giving or obtaining legal advice. It applies whether or not litigation is contemplated, but does not extend to communications with third parties.

What is litigation privilege, and what are its conditions?

Litigation privilege protects confidential communications between a client or lawyer and a third party (or between client and lawyer) where: (1) litigation is in progress or reasonably in contemplation; and (2) the communication was made for the dominant purpose of that litigation (e.g. obtaining advice, evidence or information for the proceedings).

Compare legal advice privilege and litigation privilege in terms of when they apply and who they cover.

Legal advice privilege: applies at any time (no litigation needed), but only to lawyer–client communications for the dominant purpose of legal advice. Litigation privilege: requires litigation in reasonable contemplation, but extends to communications with third parties for the dominant purpose of that litigation. Both require confidentiality.

What is the "without prejudice" rule, and what is its rationale?

The without prejudice rule makes communications (oral or written) made in a genuine attempt to settle an existing dispute inadmissible as evidence of admissions against the party that made them. Its rationale is the public policy of encouraging parties to settle disputes by speaking freely in negotiations without fear their concessions will be used against them at trial.

Name three exceptions to the without prejudice rule.

Among the recognised exceptions: (1) to determine whether a binding settlement was concluded; (2) where the protection is used as a cloak for perjury, blackmail or other "unambiguous impropriety"; (3) to explain delay (e.g. on a strike-out / limitation point); (4) where the parties agree the communication is "without prejudice save as to costs" (Calderbank); and (5) rectification or estoppel arising from what was said.

What is a "without prejudice save as to costs" (Calderbank) offer?

A settlement offer that cannot be referred to during the substantive trial on liability/quantum, but may be revealed to the court on the question of costs after judgment. It allows a party to put pressure on an opponent and seek costs consequences if the opponent fails to beat the offer, in situations where a formal Part 36 offer is unavailable or unsuitable.

What is the general rule on costs at the end of proceedings (CPR 44.2)?

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ("costs follow the event"). However, the court has a discretion to make a different order, taking into account all the circumstances, including conduct, partial success, and any admissible offers to settle.

What conduct factors may lead a court to depart from the general rule on costs?

Under CPR 44.2(4)–(5), the court considers the parties' conduct before and during proceedings (including pre-action protocol compliance), whether it was reasonable to raise/pursue particular allegations or issues, the manner of pursuing the case, whether a successful party exaggerated its claim, and any admissible offers to settle (including Calderbank offers).

Compare the standard basis and the indemnity basis of costs assessment.

Standard basis: the receiving party recovers costs that are proportionate and reasonably incurred; any doubt as to reasonableness or proportionality is resolved in favour of the paying party. Indemnity basis: costs must be reasonably incurred and reasonable in amount, doubt is resolved in favour of the receiving party, and proportionality does NOT apply — so indemnity costs are usually higher.

What is a Part 36 offer and what are its key formal requirements?

A Part 36 offer is a formal written offer to settle made under CPR Part 36 that carries automatic costs and interest consequences. It must: be in writing; state on its face that it is made pursuant to Part 36; specify a "relevant period" of not less than 21 days during which the defendant will be liable for the claimant's costs if accepted; state whether it relates to the whole or part of the claim; and state whether it takes account of any counterclaim.

What costs consequences follow when a defendant accepts a claimant's Part 36 offer within the relevant period?

On acceptance within the relevant period, the claimant is entitled to its costs of the proceedings up to the date on which notice of acceptance was served, assessed on the standard basis if not agreed (CPR 36.13). The claim is stayed on the agreed terms.

What are the consequences if a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer?

Under CPR 36.17(3), unless unjust, the court orders the claimant to pay the defendant's costs from the expiry of the relevant period, plus interest on those costs. In effect the claimant loses its costs and pays the defendant's costs for the period after it should have accepted.

What are the consequences if a defendant fails to beat a claimant's own Part 36 offer at trial (claimant equals or betters its offer)?

Under CPR 36.17(4), unless unjust, the claimant is awarded: (a) interest on the sum awarded at up to 10% above base rate; (b) costs on the indemnity basis from the end of the relevant period; (c) interest on those costs at up to 10% above base rate; and (d) an additional amount (10% of the first £500,000 awarded and 5% of any amount above that, capped at £75,000).

How is the Part 36 "additional amount" payable to a claimant who beats its own offer calculated?

The additional amount is $10\%$ of the amount awarded up to £500,000, plus $5\%$ of any amount awarded above £500,000, subject to an overall cap of £75,000. For example, a £600,000 award gives $0.10 \times 500{,}000 + 0.05 \times 100{,}000 = £55{,}000$.

Within what period can a Part 36 offer normally be accepted, and what happens to acceptance after the relevant period expires?

A Part 36 offer can be accepted at any time (unless withdrawn), including after the relevant period, because it does not lapse automatically. If accepted after the relevant period without agreement on costs, the court will normally order the offeree to pay the offeror's costs from the end of the relevant period to the date of acceptance, while the offeror pays costs up to the end of that period.

What is a Damages-Based Agreement (DBA) and how is the lawyer's fee structured?

A DBA is a "no win, no fee" funding arrangement in which the lawyer's payment is a percentage of the sums recovered by the client. If the case is lost, no fee is payable. The recoverable percentage is capped by regulation (e.g. 25% including VAT in personal injury claims, excluding damages for future care/loss; up to 50% in most other civil claims).

What is a Conditional Fee Agreement (CFA), and is the success fee recoverable from the losing party?

A CFA is a "no win, no fee" agreement under which the lawyer charges nothing (or a reduced fee) if the case is lost, and may charge a success fee (an uplift on base costs, capped at 100%) if it is won. Since the LASPO Act 2012 reforms (April 2013), the success fee is generally NOT recoverable from the losing opponent and is paid by the client out of damages.

What is After-the-Event (ATE) insurance, and is the premium recoverable?

ATE insurance is a policy taken out after a dispute has arisen to cover a litigant's potential liability for the opponent's costs (and sometimes its own disbursements) if the claim fails. Since LASPO 2012, ATE premiums are generally NOT recoverable from the losing party (with limited exceptions, e.g. certain clinical negligence expert report premiums).

What is Qualified One-Way Costs Shifting (QOCS), and to which claims does it apply?

QOCS applies to personal injury and clinical negligence claims. It means a losing claimant is generally not required to pay the defendant's costs, protecting claimants who no longer have ATE cover after LASPO. Protection is lost in defined circumstances, such as where the claim is fundamentally dishonest, struck out as disclosing no reasonable cause of action, or an abuse of process.

What is the difference between an appeal and a review, and what is the general test for a successful appeal (CPR 52.21)?

An appeal is normally a review of the lower court's decision, not a rehearing (unless a practice direction or the court orders otherwise). The appeal court will allow an appeal where the decision was (a) wrong (in law, fact, or exercise of discretion) or (b) unjust because of a serious procedural or other irregularity in the lower court's proceedings.

What permission is generally required to appeal, and what is the test for granting it?

Permission to appeal is generally required (CPR 52.3). It may be sought from the lower court or the appeal court. Permission is granted only where the court considers the appeal would have a real prospect of success, or there is some other compelling reason for the appeal to be heard.

What is a default judgment and on what basis may a defendant apply to set it aside?

Default judgment (CPR Part 12) is judgment obtained without trial where the defendant failed to file an acknowledgment of service or a defence in time. The court must set it aside if wrongly entered (e.g. response time had not expired) and may set it aside (CPR 13.3) if the defendant has a real prospect of successfully defending the claim or there is some other good reason, taking into account whether the application was made promptly.

What is the relief from sanctions test established in Denton v TH White [2014]?

A three-stage test under CPR 3.9 for relief from sanctions: (1) identify and assess the seriousness and significance of the breach — if not serious/significant, relief is usually granted; (2) consider why the default occurred (is there a good reason?); and (3) evaluate all the circumstances of the case to deal with the application justly, giving particular weight to the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules and orders.