1. When counsel wants to put forward and argument in order to convince the courts that a case should be seen as per incuriam, the which is being questioned by counsel must satisfy certain criteria. When counsel is putting forward his argument to ask the court to make a case per incuriam, counsel must show that, in that case, the court did not consider all the relevant legal issues.

Counsel needs to show that the correct statute was not applied or the relevant legal authority was not considered, i.e. inappropriate case was applied. The best argument for a case being per incuriam would be that the inconsistent use of the law affected the outcome of the case. This is not to suggest that the courts made a mistake or were wrong, just that they overlooked relevant legal authorities.

This can be seen in the case of Broome v Cassell (1971) where the court declared the case to be per incuriam on the bases that during the trial two House of Lords authorities were not cited to the court.  Another example of a case being declared per incuriam is the case of Rakhit v Carthy (1990) on the bases that the previous court misinterpreted s. 67(3) of the Rent Act 1977.

Therefore, if counsel wants to put forward a successful argument of a case being per incuriam, he has to establish that the courts have made an inconsistent decision, and that if it had not been for this inconsistency the outcome of the case would have been different.  

Join now!

2. During litigation, there is a process known as disclosure. This process is whereby all the parties in a case disclose to each other all the documents in their possession and all the documents which they wish to rely upon during the trial. All the parties have to disclose all the documents whether such documents assist them. However, they do not have to disclose privileged documents. This process takes place after the allocation questionnaires have been filed. The parties have to serve a list of documents. This list contains the identity of the all the documents that will be ...

This is a preview of the whole essay