Bar Training Course — Centralised Assessments (Civil Litigation & Criminal Litigation)

# Bar Training Course — Centralised Assessments
## Civil Litigation, Evidence and ADR | Criminal Litigation, Evidence and Sentencing
### Topic Notes (Grounded)

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## PART A: CIVIL LITIGATION, EVIDENCE AND ADR

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### 1. Interim Injunctions and Interim Relief

The court's jurisdiction to grant interim injunctions is a core civil litigation topic. When a party seeks to restrain another pending trial, the court applies the American Cyanamid balance of convenience test: (1) is there a serious question to be tried; (2) would damages be an adequate remedy; (3) where does the balance of convenience lie.

**Ex parte (without notice) applications** require full and frank disclosure of all material facts. Failure to disclose entitles the respondent to have the order set aside.

Real case authority — non-disclosure leading to set aside:
- **Belletti & Ors v Morici & Ors [2009] EWHC Comm 2316**: The Court held that a freezing injunction (Mareva order) granted ex parte by Andrew Smith J was challenged by defendants on grounds that (i) the English courts lacked jurisdiction over Italian-domiciled defendants and (ii) the claimants had failed to make full and frank disclosure on the without-notice application. The case illustrates both the jurisdictional limits of English interim relief against foreign defendants and the strict material disclosure obligation on applicants in ex parte injunction applications. Where there is material non-disclosure, the court may set aside the order regardless of the underlying merits.

**Anti-suit injunctions** restrain foreign proceedings that breach an exclusive jurisdiction or arbitration clause under English law.

- **Manta Penyez Shipping Inc & Anor v Zuhoor Alsaeed Foodstuff Company [2024] EWHC 3109 (Comm)**: The court considered return-date interim anti-suit relief restraining Yemeni court proceedings brought in breach of an English guarantee clause. The case illustrates the multi-stage nature of anti-suit relief: it is first granted ex parte at a without-notice hearing, then continued or discharged at a return date, and the respondent's non-participation does not prevent the court from making a final order if properly served.

**Costs following interim injunction applications**: where a claimant fails to obtain an injunction, costs ordinarily follow the event.
- **CHIA-HSING WANG v FLOREAT PRIVATE LIMITED [2023] EWHC 1123 (Comm)**: Claimant's claim for interim injunction pending trial was dismissed. The court applied the default rule that costs follow the event; the defendant, as the successful party on the interim application, was entitled to its costs even though the underlying claim remained live.

**Stay of civil proceedings — Covid-19 and Practice Directions**:
- **Arkin v Marshall [2020] EWCA Civ 620**: The Court of Appeal interpreted Practice Direction 51Z (Stay of Possession Proceedings — Coronavirus), which came into force on 27 March 2020, holding that the PD operated to impose a mandatory stay on all possession proceedings then extant or newly issued during the relevant period. This illustrates how Practice Directions can override ordinary CPR rules and how courts interpret emergency procedural measures.

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### 2. Limitation Periods

Under the **Limitation Act 1980**:
- Ordinary tort/contract claims: 6 years (s.2 / s.5)
- Personal injury: 3 years from accrual or date of knowledge (s.11)
- Latent damage (non-PI, s.14A): 3 years from date of knowledge, maximum 15 years from act/omission (long-stop s.14B)
- Fraud, concealment, mistake (s.32): time runs from discovery or when reasonably discoverable

**Section 14A — latent damage (solicitors' negligence)**:
- **Lee Witcomb v J Keith Park Solicitors [2023] EWCA Civ 326**: The Court of Appeal confirmed that s.14A of the Limitation Act 1980 applies to claims against solicitors for negligent handling of litigation. The claimant, who had suffered serious injury in a road accident in 2002 and settled for an undervalue in 2009 due to allegedly negligent advice, brought proceedings out of the primary 6-year period. The Court of Appeal upheld the trial judge's finding that the 3-year s.14A period ran from the date the claimant had sufficient knowledge to bring an action in negligence, not from the date of the initial negligent act. Practitioners must advise clients that the s.14A "date of knowledge" test is objective and the court asks when a reasonable person in the claimant's position would have had the facts needed to formulate the cause of action.

**Section 32 — fraud claims and deceit**:
- **Saddiq Omar Abu Seedo v Fahmy El Gamal [2023] EWCA Civ 330**: The Court of Appeal addressed two questions of general importance on s.32(1)(a) Limitation Act 1980 in deceit claims: (1) whether "the fraud" in s.32 means the fraud as pleaded or the fraud as found after trial; (2) whether a claimant who could with reasonable diligence have discovered the fraud is fixed with constructive knowledge. The court confirmed that limitation in fraud cases is assessed against the pleaded case when the issue arises before trial (e.g. on a strike-out application), and that s.32 postpones time running only until the claimant discovered, or with reasonable diligence could have discovered, the fraud.

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### 3. Disclosure and Inspection (Civil)

Under **CPR Part 31**, standard disclosure requires each party to disclose documents on which they rely, plus documents which adversely affect their own case or another party's case, or support another party's case.

Key obligations: disclosure statement signed by party; privilege (legal professional privilege, without-prejudice); specific disclosure orders under CPR 31.12; inspection and redaction for irrelevant/confidential parts.

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### 4. Expert Evidence (Civil)

Under **CPR Part 35**, expert evidence is restricted to cases where it is reasonably required. Experts owe an overriding duty to the court, not to the party who instructs them (CPR 35.3). The court controls admission of expert evidence; single joint experts (SJEs) are preferred in lower-value claims.

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### 5. ADR and the Overriding Objective

The **overriding objective** (CPR 1.1) is to enable the court to deal with cases justly and at proportionate cost. Active case management includes encouraging ADR (CPR 1.4(2)(e)). Courts may take unreasonable refusal to engage in ADR into account on costs (Halsey v Milton Keynes NHS Trust [2004] — note: this is a well-known pre-corpus authority referenced in the Jackson ADR Handbook).

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## PART B: CRIMINAL LITIGATION, EVIDENCE AND SENTENCING

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### 6. Bad Character Evidence

Under the **Criminal Justice Act 2003 (CJA 2003), s.98–113**, bad character evidence is defined as evidence of, or of a disposition towards, misconduct other than evidence that has to do with the alleged facts of the offence or is evidence of misconduct in connection with the investigation or prosecution of the offence.

A defendant's bad character may be admitted through one of the seven gateways in s.101(1) CJA 2003, most commonly:
- **(d) important explanatory evidence** — without which the jury would find it impossible or difficult to understand other evidence
- **(g) attack on another person's character** — defendant has made an attack on another person's character
- **(d)/(f) propensity** — the evidence is relevant to an important matter in issue between defendant and prosecution (s.101(1)(d)) and goes to the defendant's propensity to commit offences of the kind charged or propensity to be untruthful

**Propensity evidence and previous convictions for violence**:
- **R v Johnson [2019] EWCA Crim 1025**: The Court of Appeal upheld the trial judge's decision to admit evidence of the appellant's numerous previous convictions for assault and similar violence under s.101(1)(d) CJA 2003. The appellant had been convicted of murder following a fight at a party. The court confirmed that where a defendant's propensity to commit violence is genuinely in issue — for example because the defendant denies being the aggressor — previous convictions for assault are admissible as propensity evidence. The Court of Appeal held that the admission of this bad character evidence did not render the conviction unsafe.

**Bad character and stalking/harassment convictions — error in admission**:
- **R v Allison [2020] EWCA Crim 465**: The applicant was convicted of stalking involving serious alarm or distress and breach of a restraining order. On appeal, it was argued that the trial judge erred in admitting bad character evidence of previous convictions. The Court of Appeal considered the test for whether bad character evidence prejudices the defendant to such an extent as to render a conviction unsafe. The case reinforces that the court must scrutinise gateways carefully and that admitting bad character evidence under the wrong gateway or without proper judicial direction may found a successful appeal.

**Key rule**: Under s.101(3) CJA 2003, the court MUST exclude bad character evidence admitted through gateway (d) or (g) if it appears that admitting it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

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### 7. Hearsay Evidence (Criminal)

Under **CJA 2003, ss.114–136**, hearsay evidence (an out-of-court statement tendered for the truth of its contents) is admissible in criminal proceedings only through a statutory gateway:
- **s.116** — unavailable witness (dead, ill, abroad, cannot be found, fear): where the maker of the statement cannot be found despite reasonable steps, hearsay from that person may be admitted
- **s.117** — business documents
- **s.118** — preserved common law categories (res gestae, confessions etc.)
- **s.114(1)(d)** — the interests of justice gateway (discretionary)

**Jury directions and hearsay in complex trials**:
- **A & Ors v R [2007] EWCA Crim 2485**: The Court of Appeal held that in lengthy and complex criminal trials, the adequacy of the judge's summing-up is critical to ensuring the jury has a rational basis for reaching a fair verdict. The ratio is that the longer and more complex the case, the more important it is that the judge provides short and careful analysis of the issues and complies with the essential criteria established in R v Lawrence and R v Nelson on jury directions. The case arose in a context where hearsay evidence featured alongside multiple defendants; inadequate directions on how the jury should approach hearsay and the evidence of each defendant increased the risk of an unsafe verdict.

**Hearsay and the "cannot be found" condition**:
- **Daly v Her Majesty's Advocate [2003] ScotHC 30**: (Scottish authority, noted for comparative context.) The court confirmed that hearsay evidence is admissible where the witness is "named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken." This maps to the English s.116(2)(d) CJA 2003 condition. Once the precondition is satisfied, the court had no residual discretion to exclude the evidence on those facts under the applicable provision, though the general exclusionary discretion under s.78 PACE 1984 remains.

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### 8. Disclosure (Criminal — CPIA 1996)

The **Criminal Procedure and Investigations Act 1996 (CPIA 1996)** governs prosecution and defence disclosure obligations.

**Prosecution initial disclosure (s.3)**: the prosecutor must disclose previously undisclosed material that might reasonably be considered capable of undermining the prosecution case or assisting the defence.

**Defence statement (s.5/6)**: in Crown Court, mandatory; in Magistrates' Court, voluntary. The defence statement triggers secondary prosecution disclosure.

**Section 8 applications** — defence may apply for specific disclosure of material it believes exists and that meets the disclosure test:
- **DPP (on the application of) v Crown Court at Caernarfon & Anor [2019] EWHC 767 (Admin)**: The Divisional Court (judicial review) addressed a s.8 CPIA 1996 application for disclosure in the context of a Crown Court appeal against a Magistrates' Court conviction for speeding. The Crown Court judge allowed a disclosure application relating to the approved measurement device and its calibration records used by civilian speed enforcement officers. The DPP sought judicial review of that decision. The case illustrates: (1) the scope of s.8 CPIA disclosure rights on appeal; (2) the approach to unused material relating to the reliability of prosecution evidence; and (3) the supervisory jurisdiction of the Administrative Court over Crown Court disclosure decisions.

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### 9. Bail and Remand

Under the **Bail Act 1976**, there is a general right to bail unless one of the exceptions in Schedule 1 applies. For indictable offences, bail may be refused if there are substantial grounds to believe the defendant will:
- Fail to surrender to custody
- Commit an offence on bail
- Interfere with witnesses or obstruct justice

Conditions may be attached (residence, curfew, surety, reporting).

**Remand in custody and the fundamental presumption of innocence**:
- **AG v Maltez [2000] UR 2000_158**: The court considered bail for a defendant charged with a serious criminal assault who had been remanded in custody for 8 months awaiting trial. In granting bail, the court emphasised: "The fundamental principle of the criminal law is that a person is presumed innocent until he is proved guilty." The court applied the risk-of-absconding test, finding that the absence of previous convictions, the presence of confirmed accommodation and employment, and the confiscation of identity documents by police together reduced the risk of absconding sufficiently to justify bail with conditions.

**Time on remand and credit against sentence**:
- **R v Fontella [2010] EWCA Crim 1990**: The Court of Appeal addressed the proper approach to crediting remand time under s.240 Criminal Justice Act 2003 (now s.325 Sentencing Act 2020). The trial judge directed that all time spent on remand in custody (15 days) should count towards the sentence, but failed to note that some of the remand days had already been credited against a concurrent sentence arising from magistrates' court proceedings. The Court confirmed that double-counting of remand days is impermissible; the sentencing judge must direct the prison authorities correctly. Defence counsel's failure to alert the judge to the overlap was noted; practitioners must check remand calculations carefully before sentence.

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### 10. Sentencing — Crown Court

The **Sentencing Act 2020** consolidates Crown Court sentencing powers. Sentencing guidelines (issued by the Sentencing Council under the Coroners and Justice Act 2009) must be followed unless it is contrary to the interests of justice (s.59 Sentencing Act 2020).

**Key threshold**: the custodial threshold requires that the offence (or combination of offences) is so serious that neither a fine nor a community sentence can be justified (s.230 Sentencing Act 2020).

**Whole life orders**:
- **Regina v Ian Stewart & Ors [2022] EWCA Crim 1063**: The Court of Appeal considered appeals against sentence by Ian Stewart (convicted of two murders — Helen Bailey 2017 and Diane Stewart, convicted 2022, killed in 2010), Wayne Couzens (murder, rape and kidnapping of Sarah Everard), and Jordan Monaghan (three counts of murder including two young children). All had received whole life orders. The Court confirmed that a whole life order is the appropriate sentence where the seriousness of the offending is so exceptional that just punishment requires the offender to be kept in prison for the rest of their life. The court applied the s.321 and Schedule 21 Sentencing Act 2020 framework (murder minimum terms), confirming that multiple murders, murders involving the rape or abduction of the victim, and serial murders of children are paradigm cases for whole life orders.

**Sentencing in the Magistrates' Court**: from **18 November 2024**, magistrates have power to impose up to 12 months' imprisonment for a single either-way offence (increased from 6 months by commencement of s.224 Sentencing Act 2020 / s.14 PCCA 2022). This is a key syllabus point for the 2025-2026 criminal litigation paper.

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### 11. Appeals (Criminal)

**From Magistrates' Court**: appeal to Crown Court (re-hearing) under s.108 Magistrates' Courts Act 1980; or case stated to Divisional Court on a point of law.

**From Crown Court (conviction/sentence)**: appeal to Court of Appeal (Criminal Division) under the Criminal Appeal Act 1968; must have leave; grounds usually unsafe conviction or wrong in principle/manifestly excessive sentence.

**Summing up and the safety of a conviction**:
- **A & Ors v R [2007] EWCA Crim 2485** (see section 7 above): The ratio on appellate review is that the Court of Appeal will quash a conviction if the summing-up fails to comply with essential criteria and there is a real risk the jury lacked a rational basis for its verdict.

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### 12. Youth Courts and Special Measures

Youth courts (under 18 at time of offence) are governed by the Sentencing Act 2020 (ss.1-4 on age/maturity) and Youth Justice and Criminal Evidence Act 1999. **Special measures** under YJCEA 1999, ss.16-33 are available for vulnerable and intimidated witnesses:
- Screens (s.23)
- Live link (s.24)
- Evidence in private (s.25)
- Wigs and gowns removed (s.26)
- Video-recorded examination-in-chief (s.27)
- Video-recorded cross-examination/re-examination (s.28)
- Examination through intermediary (s.29)
- Aids to communication (s.30)

**Detention of minors and Article 5 ECHR**:
- **Archer v The Commissioner of Police of the Metropolis [2020] EWHC 1567 (QB)**: The High Court addressed whether s.38(1)(b)(ii) PACE 1984 — which permits detention of a minor after charge "in his own interest" — is incompatible with Article 5 ECHR. The claimant, aged 15 at arrest, had been detained overnight in a police cell. The court considered whether the "own interest" ground provides a Convention-compliant basis for pre-charge detention of children. The case is significant for criminal practitioners: any detention of a youth must be reviewable, and grounds must be Convention-compliant; simple reliance on "own interest" as a self-standing ground for overnight cell detention of a minor is constitutionally suspect.