Advocacy PDF

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Summary

This will help you to get a grasp how to tackle your advocacy assessment by thinking independently and most importantly able to critically analyse the issues of law to be brought for summary judgment...

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Advocacy – Introduction Trainee’s ability to undertake advocacy •

Trainees may undertake advocacy where matters are heard in private provided they are supervised by someone appropriately authorised to exercise rights of audience

Content 1. State law / rule 2. Apply to relevant facts 3. Reach a conclusion Presentation 1. Formalities – counsel introduce themselves and who they act for, and check how much the court knows about the case 2. Scripts – advocates generally avoid reading from a script 3. Checking that the court has knowledge of the background to the case 4. Maintain eye contact with the panel / judge 5. Stand still to avoid detracting from what you are saying 6. Be clear and precise when you refer to documents 7. Be fluid when responding to questions, able to reprioritise items within the submission in accordance with the judge’s questions CPR CPR Time Limits • •

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In general, per CPR 2.11, time limits may be varied by written agreement of the parties, unless the Rules / PD / court provides otherwise The court may, per CPR 3.1(2)(a), except where CPR provides otherwise, extend / shorten time limits; adjourn or bring forward a hearing (CPR 3.1(2)(b)) Acknowledgment of Service must be filed within 14 days after the service of Particulars of Claim (CPR 10.3) If no AoS, D must serve defence within 14 days of service of the PoC (CPR 15.4(1)(a)) If AoS, D must serve defence within 28 days of service of the PoC (CPR 15.4(1)(b)) If no defence filed within time limit, C may obtain judgment in default (CPR 15.3) CPR 15.5(1) – parties can agree in writing to extend the time periods by 28 days o CPR 15.5(2) – D must notify the court in writing of any such agreement CPR 15.5 + 2.11 (time may be varied by written agreement of the parties, unless otherwise specified in these rules / PD) – permission of the court required for any further extension beyond 28 days = interim application for court to use powers under CPR 3.1(2)(a) = considered given circumstances + Overriding Objective

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Overriding Objective •

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CPR Part 1 – court must deal with cases justly and at proportionate cost (1.1(1)): o Ensuring the parties are on an equal footing (1.1(2)(a)) o Saving expense and being expeditious (1.1(2)(b) + (d)) o Proportionality – value, importance of case, complexity of issues, financial positions of respective parties (1.1(2)(c)) CPR 1.3 – parties must help the court further the overriding objective

Pre-action protocols •

When the court gives directions, it will take into account whether a party has complied with the PD (Pre-Action Conduct) and any relevant pre-action protocol (CPR 3.1(4))

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SRA CCS •

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7 Principles SRA CCS: o Uphold rule of law o Uphold public trust and confidence in solicitors o Act with independence o Act honestly o Act with integrity o Encourage equality, diversity and inclusion o Act in bests interests of each client Where there is conflict between principles, those in the public interest take precedence over the interests of the client – the duty to the court takes precedence o If it becomes clear that a client has misled the court, there is a duty on the solicitor to ask the client to disclose the truth to the court, and if he refuses, to stop acting for him / her SRA CCS 1.3 – See re: undertakings below SRA CCS 1.4 – you do not mislead clients or the court or others by your own acts or omissions or allowing or being complicit in the acts or omissions of others (inc. your client) SRA CCS 2.1-3 – do not tamper with / misuse /influence substance of evidence SRA CCS 2.4 – anything said to the court must be properly arguable SRA CCS 2.5 – do not place yourself in contempt of court SRA CCS 2.6 – do not waste the court’s time SRA CCS 2.7 – draw court’s attention to relevant cases + statute w/ material effect on proceedings

Undertakings •

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Be very cautious not to undertake to do something that is out of your control, and when making an undertaking, ensure it is Specific, Measured, Agreed, Realistic, Timed, as you must perform all undertakings within an agreed timescale or within a reasonable amount of time (SRA CCS 1.3) When making undertakings, there is a difference between an undertaking to take reasonable endeavours vs best endeavours o ‘Reasonable endeavours’ only requires the party to take one reasonable course o ‘Best endeavours’ requires the party to take all the reasonable courses he can

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Format of the hearing •

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Be consistent in use of (and follow Master’s instructions if given) 1. Applicant and respondent OR 2. Claimant and defendant Refer specifically to: o Parts of CPR o Chronology o Documents attached (e.g. contract attached to Particulars of claim served with the claim form)

Applicant’s submissions •

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Applicant goes first o Good morning / afternoon, Master, I am X representing the Applicant / C/D, [client name]. My friend Mr [X] represents the Respondent / C/D, [client name]. Master, this is the Applicant’s / C’s/D’s application under CPR Part [X] Rule [Y] to… [set aside the judgment in default obtained by the claimant on 18th August]. o Master, do you have a copy of the application notice and witness statement? o Can I hand you the chronology? o OTHER PARTY: And Master, could I also please hand you a chronology? o Perhaps Master you would like me to take you through the background to the case? Ask whether Master / DJ would like you to summarise the claim – if yes, be very brief: o Who parties are o What claim is about (e.g. breach of contract) o Why interim application is being made Master, if I could just take a moment to briefly take you through the chronology of this action. [Go through key dates]

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I have X submissions to make, Master The first is that – some ideas of submissions: o Real prospect of success o Good reason for delay o Filing application promptly without delay o Overriding objective – value of case, importance to parties, no undue delay in application

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Master, those are my submissions.

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Respondent’s submissions

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Master, the defendant’s application is resisted by the claimant. The claim has made X submissions. I will seek to address those in turn. However, before doing so, I would like to make a more general submission. [Make general submission re: compliance with pre-action protocols, reasonable behaviour etc. vs unreasonable behaviour of other side – make sure that you are prepared with CPR parts in response to questions from Master, e.g. CPR 1.3 – parties must help the court further the overriding objective + compliance with practice direction – pre-action conduct]

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Address substantive submissions by applicant in turn – based on pre-trial prep Master, for all of these reasons, I invite the court to refuse the defendant’s application.

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Replies • • •

Respond to all points by the other side in sequence Emphasise any key points in our favour – emphasise behaviour + compliance with CPR Conclude with reference to CPR 1.1 – it would not be just under the overriding objective for…

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Costs (CPR Part 44) • • •

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Both parties file and serve at court a schedule of costs, detailing costs incurred in preparing for and attending the interim application CPR 44.2(1) – court has discretion to decide whether + amount of costs payable CPR 44.2(2)(a) – general rule is that the unsuccessful party will be ordered to pay costs of the successful party o but the court may make a different order (CPR 44.2(2)(b)) While the final costs order is made after trial, the court may make many interim costs orders, e.g. following interim application for an extension of time, judge will often make costs order re: costs of preparing for and attending hearing straight after decision as to application

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Costs orders – CPR 44 PD 4.2: o Costs in any event –entitled to costs in respect of the part of proceedings to which the order relates (e.g. interim hearing), regardless of who eventually wins the trial, usually payable within 14 days of interim hearing § Apply when successful § Apply when partly successful § Apply when unsuccessful, but judge comments favourably in judgement, stating acted reasonably / were justified in your stance o Costs in the case – whoever gets their costs at trial will recover the costs of preparing for and attending the interim hearing § Apply if partly unsuccessful / no obvious successful party § Apply if unsuccessful, but conduct reasonable o No order for costs – each party liable for its own costs § Apply if no obvious successful party § Apply if court disapproving of both parties’ conduct

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Points to make during costs submissions: o Successful party / Unsuccessful party / Decision partly in favour of each party (CPR 44.2(2)(a)) o Quality of arguments o Acted reasonably / good conduct and the other party acted unreasonably + quotes from the Master § CPR 44.2(4) – court will have regard when making a costs order to: a) Conduct of the parties o Inc. per CPR 44.2(5)(a) compliance with Practice Direction – Pre-Action Conduct / pre-action protocol o + per CPR 44.2(5)(b) whether reasonable for party to raise / content particular allegation OR issues should have been conceded pre-trial = wasted court time? b) Whether a party has succeeded in part of its case, even if not wholly successful c) Any admissible offer to settle o Court only to allow costs which are proportionate to issue (CPR 44.3(2)(a))

© Liam Porritt 2020

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