CIVIL PROCEDURE AND PRACTICE I
A BRIEF GUIDE TO ADVICES/OPINIONS ON LIABILITY, EVIDENCE AND
QUANTUM
A General Note
Please note that once you are asked to advise or to do an opinion or advice on a particular
issue or matter, you are required to:
1. Consider the facts presented
2. Identify the issues
3. Find and state the law
4. Provide analysis of the law and facts
5. Apply the law to the facts; and then
6. Conclude by providing your opinion or advice with respect to the particular
issues/matters on which you have been asked to advise.
Note that an advice is not a letter to the client, even though in certain cases, a client can
specifically request that you provide advice by letter.
Once you have not been specifically instructed to write a letter, the advice should take the
format of an essay (not an academic essay) in which you are providing practical legal
opinion on the facts in question.
1. ADVICE ON LIABILITY
(a) Outline the purpose of the advice e.g. to provide an opinion on the issue of liability
arising out of an incident on _________ at _________ etc.
(b) Outline the facts in brief.
(c) Identify the general issues arising from the facts e.g. in the case of Michelle Abel, the
general issues can be whether Michelle can bring an action/has a cause of action in
respect of the injuries, damage and loss she suffered arising from the incident and if
so, against whom?
Prepared by Martha Des Vignes – Course Director – CPPI
(d) Identify the specific issues. The general issues may lead to the more specific issues
based on the circumstances such as:
1. Whether in the circumstances, a duty of care exists?
2. If yes, who owes this duty and to whom?
3. What is the nature of that duty?
4. On the facts, is there a breach of that duty?
5. Why do you find so?
6. If yes, was damage caused to the proposed claimant/plaintiff as a result of that
breach?
7. If yes, was that damage reasonably foreseeable?
8. Did the proposed claimant contribute to her damage?
(e) Conclusion:
Summarize your conclusions based on your analysis. For e.g. “On the facts, a duty of
care existed. This duty which was owed by CCC as a road user to MMM, also a road
user, was _______(state the general nature of the duty)_____. CCC acted in breach of
that duty and this breach resulted in the injuries, damage and loss suffered by MMM
which were reasonably foreseeable. As such, MMM can bring an action against CCC
in respect of the injuries, damage and loss that he/she suffered.
2. ADVICE ON EVIDENCE
(a) Outline the purpose of the advice e.g. ‘to provide an opinion on the evidence required
to successfully prove the client’s case at trial.
(b) Outline the facts in brief (only if not already done. For example if this advice is
incorporated with another advice on the same facts, then there is no need to repeat
these facts).
(c) Consider the evidence required to prove liability :
Examine each element of the cause of action under oral, documentary and expert
evidence.
1. The existence of a duty of care (proof of relationship / status of parties e.g.
that CCC and MMM were road users.)
Prepared by Martha Des Vignes – Course Director – CPPI
2. Proof of the breach of duty
3. Proof that damage was caused as a result of the breach
(d) Consider the evidence required to prove quantum of damage i.e. the extent of the
damage and loss.
(e) Conclusion – Provide a summary of the evidential requirements in your conclusion.
3. ADVICE ON QUANTUM
(a) Outline the purpose of the advice e.g. ‘to provide an opinion on the award that a judge
would be likely to award based on the circumstances ( the nature of the injury, loss
etc’.
(b) Outline the facts in brief (only if not already done. For example if this advice is
incorporated with another advice on the same facts, then there is no need to repeat
these facts).
(c) Outline the general principles with respect to an award of damages.
(d) Identify the two broad heads of damages – special and general damages and indicate
what these are.
(e) Quantify the special damages (set out in a table so that the figures can be easily
calculated at a glance).
(f) Quantify general damages:
1. Outline the general principles in Cornilliac v. St. Louis
2. Highlight the client’s injuries having regard to the principles in the Cornilliac
case. Identify the relevant heads of general damages.
3. Consider previous cases in which awards were made in respect of similar
injuries, loss and damage. It is important to note the date at which these
awards were made since they will not be awards updated to the present time.
4. Analyse the client’s case based on the previous awards mentioned above.
5. Determine an amount (or a range) with respect to a likely award for general
damages.
(g) Consider any necessary deductions e.g. sick leave, taxes, NIS etc.
(h) Consider if any amounts may be deducted for contributory negligence.
Prepared by Martha Des Vignes – Course Director – CPPI
(i) Indicate by identifying the relevant legislation that interest is awarded on damages
and that the interest is added on the total figure after all deductions.
(j) Conclusion – Give a summary. A table showing the breakdown of the figures is
helpful for e.g. highlighting the amount for special damages, general damages, total
deductions, amount for contributory negligence and interest. In a case, where the
deductions are unknown, and it may not be known if the client was contributory
negligent, these aspects should be mentioned but it can be indicated that there are
insufficient facts to be given to make a determination of the amount etc.
POINTS TO NOTE:
When doing your advices:
1. Have regard to the criteria in the marking criteria provided e.g. language and style,
structure etc.
2. Have regard to the relevant material posted on TWEN with respect to advices.
3. Ensure that authorities are provided for every legal principle stated. Note that you need
have a different authority for each principle since one case can be authority for several
legal principles.
4. Ensure that all authorities are properly cited.
5. Avoid using long quotes in your advices. Paraphrase legal principles and support with
authorities.
6. Indicate your legal conclusions, only after you have identified the issues, set out the law,
done your analysis and applied the law to the facts of the case.
7. Be logical, clear and succinct.
Prepared by Martha Des Vignes – Course Director – CPPI