Civil Litigation common mistakes
Civil Litigation · Understand the traps and how to avoid them.
Computing the limitation period from the date the claimant first became aware of the damage rather than from the date the cause of action accrued, or applying a single limitation period to every claim without checking whether a special regime (personal injury, latent damage, land, a statutory extension or standstill agreement) applies.
Candidates memorize 'six years for contract, six for tort' and then stop reading; they conflate the discovery-based accrual rules for latent damage with the general accrual rule, and they forget that a defendant's acknowledgement or part-payment can restart the clock.
What to do instead
For every question, write the accrual date, the applicable limitation provision, and any extension or restart events as a short timeline before answering. State the resulting expiry date explicitly and check whether the claim was issued on or before it. If the question supplies no accrual facts, say so rather than assuming.
Drafting particulars of claim that plead evidence and narrative instead of material facts, or omitting the elements the claimant must prove (duty, breach, causation, loss) and the remedy sought, then failing to spot that the pleading is vulnerable to a strike-out or a request for further information.
Candidates write what happened in chronological story form because that is how the facts were taught, and they do not separate 'what must be alleged' from 'what must be proved' - so the pleading is long but legally incomplete.
What to do instead
Before writing, list the cause of action's elements as headings and ensure each has at least one pleaded fact. Keep evidence out; plead facts only. End with a clear prayer for relief. Then test the draft against the strike-out threshold: does it disclose reasonable grounds and is it susceptible of a fair trial?
Treating service as a formality: serving at the registered office or last known address without checking the applicable method, failing to serve within the validity period of the claim form, or assuming service is valid because the defendant actually received the document.
Candidates conflate 'the defendant knows about the claim' with 'service is valid', and they overlook that each method (personal, post, electronic, substituted) has its own deemed-service rules and its own proof requirements.
What to do instead
For each service question, identify the method, the deemed date of service under that method, whether the claim form was still valid, and what evidence of service exists. If the method failed, consider an extension of validity or an order for substituted service - and note the retrospective effect of such an order.
Confusing jurisdiction with venue and with case management: answering a jurisdiction challenge by discussing which court is convenient, or treating a forum non conveniens argument as if it were a question about whether the claim discloses a cause of action.
The words 'jurisdiction' and 'forum' are used loosely in teaching, and candidates do not separate (a) whether the court has power to hear the claim, (b) whether it should decline to exercise it, and (c) procedural allocation within the court system.
What to do instead
Answer in three layers: does the court have jurisdiction (statute, convention, submission, presence)? If yes, should it decline (forum non conveniens, lis alibi pendens, exclusive jurisdiction rules)? Only then address allocation and management. Name the layer you are addressing in your answer.
Missing case-management deadlines and sanction consequences: ignoring unless orders, failing to file a directions questionnaire or listing questionnaire on time, or not recognizing that a sanction (strike-out, unless order, costs) attaches automatically and requires relief from sanctions to undo.
Candidates read case management as background procedure and focus on the substantive dispute; they also assume a late step can simply be done late, without analyzing the three-stage relief test.
What to do instead
Treat every date in a fact pattern as a potential sanction trigger. When a step is missed, structure the answer as: what sanction applies, is relief needed, and does the applicant satisfy the relief test (seriousness and reasons for the default, promptness, and all the circumstances including the effect on others and on the administration of justice)?
Describing disclosure as 'everything relevant must be handed over' without distinguishing standard disclosure, specific disclosure, and the duty to preserve documents, and without addressing privilege, proportionality, or the continuing nature of the duty.
Candidates learn a simplified slogan and do not separate the scope of the duty (documents relied on, adverse documents, documents supporting another party's case) from the separate questions of privilege, waiver, and costs of review.
What to do instead
For each disclosure question, state: the applicable disclosure regime, the categories of documents in scope, whether any privilege applies and whether it has been waived, whether proportionality limits review, and whether the duty continues after the list is served. Flag any risk of sanctions for destruction or non-disclosure.
Answering an interim application by arguing the merits of the underlying claim instead of the test for the order sought - for example, debating whether the claimant will win rather than whether there is a serious issue to be tried, whether damages would be an adequate remedy, and the balance of convenience.
The substantive dispute is the most salient part of the fact pattern, so candidates drift into it; they also do not have a checklist for the threshold tests of the common interim orders (injunction, summary judgment, security for costs, freezing order).
What to do instead
Memorize the elements of each interim test as a checklist and answer element by element. State the threshold, apply facts to each element, then address undertakings, cross-undertakings, and costs of the application. Mention the merits only where the test explicitly requires it.
Treating admissibility as a single question - 'is it relevant?' - and ignoring hearsay status, the best-evidence and opinion rules, without-prejudice protection, and the difference between admissibility and weight.
Candidates conflate relevance with admissibility and do not systematically check whether a specific exclusionary rule applies to the particular item of evidence.
What to do instead
Run a fixed sequence for each item: relevance, then any exclusionary rule (hearsay, privilege, without prejudice, opinion, character), then any exception or notice requirement, then weight. Say expressly that admissibility and weight are separate questions and address both.
Failing to distinguish judgments from orders, or to identify which enforcement route is available against which asset - for example, seeking a charging order over future earnings, or a third-party debt order against a person who owes nothing to the judgment debtor.
Enforcement methods are taught as a list, so candidates pick one by name recognition rather than by matching the method to the type of asset and the stage of enforcement.
What to do instead
Build a two-column map: method (writ of control, third-party debt order, charging order, attachment of earnings, order to obtain information, insolvency) against asset type and prerequisites. For each enforcement question, identify the asset first, then select the method, then state the procedural steps and any priority or insolvency issues.
Losing track of time limits and permission requirements on appeal: assuming an appeal is a rehearing on the merits, missing the deadline for filing the appellant's notice, or failing to identify whether permission is required and on what grounds (real prospect of success, compelling reason, or point of principle).
Candidates carry over criminal-appeal intuitions and do not separate first appeals from second appeals, nor appeals on law from appeals on fact; they also forget that a respondent may need permission to cross-appeal.
What to do instead
For each appeal question, state: the order appealed, the court that made it, the appellate court, whether permission is required and from whom, the deadline, and the applicable test. Then address the standard of review (error of law, procedural unfairness, plainly wrong finding of fact) and the possible outcomes, including remission and costs.
Answering costs questions by declaring 'costs follow the event' and stopping, without addressing the basis of assessment (standard or indemnity), the relevance of offers and payments into court, or the court's discretion and the factors it weighs.
The default rule is memorable and candidates treat it as the whole answer, missing that the discretion is broad and that conduct, partial success, and settlement offers routinely displace the default.
What to do instead
Structure every costs answer as: who pays, on what basis, assessed how, and what factors displace the default (conduct, partial success, offer to settle, unreasonable refusal). Where a settlement offer is in play, address the costs consequences of beating or failing to beat it and whether indemnity costs are justified.
Bleeding professional-ethics issues into tactical advice: advising a client to withhold a damaging document, to contact an opposing party who is represented, or to draft a witness statement in the witness's own words without checking the rules on conflicts, confidentiality, and the duty to the court.
Candidates treat ethics as a separate topic rather than as a constraint that runs through every procedural decision, and they do not recognize that the duty to the court can override the client's instructions.
What to do instead
For any fact pattern with an ethical dimension, identify the duty engaged (to the court, to the client, confidentiality, conflict of interest, dealing with represented parties), state what the rule requires, and state what the lawyer must do if instructions conflict with that duty - including declining to act or seeking the court's direction.