4. From the Get-go

Successful PIL depends on thorough case preparation of the plaintiff’s case as well as anticipating and addressing the defences to the claim likely to be raised by the defendant. Cases are often won or lost before the trial; preparation from the get-go is thus critical.

Case preparation includes developing a case theory, establishing the law on which the claim is based, proving the facts to establish the claim, demonstrating the application of that law to those facts and proving the relief the court should grant to remedy the proven breach of the law. In short, case preparation should focus on the adjudicative tasks the court is called upon to undertake in deciding the claim.

First, develop a case theory. There is a need to build and articulate a strong, coherent theory of the case. The case theory is the strategy that will guide the conduct of the case to achieve the realistic outcomes sought by the plaintiff. It serves as a map to reach the desired destination. The case theory informs every aspect of pre-trial preparation and in-court conduct of the case. The case theory is also the means by which the plaintiff shows the court what is the desired judgment and outcome to be achieved by the litigation.

Second, establish the law. The PIL claim is based on substantive law. But identifying and articulating the rule of substantive law to be applied is rarely straightforward, especially in strategic PIL that pushes the boundaries of the law, like many climate change related cases. There are three steps in establishing the law: finding the law relevant to the claim, formulating that law in the form of a rule of law that can be applied to adjudicate the claim, and interpreting that rule of law as formulated. There is legal method in undertaking these steps.^[1]

Third, prove the facts. The facts that need to be established are the facts relevant to the rule of law as formulated. Typically, the rule of law has an ‘if … then’ structure, such as if {A, B, C, D, E}, then F. This formulation describes a rule of law that if facts A, B, C, D and E are established, legal consequence F follows. With such a rule of law, in order for the plaintiff to succeed in establishing a breach of law (legal consequence F), the plaintiff would need to prove facts A, B, C, D and E. These facts constituting the rule of law may be ultimate facts describing the elements of the claim. For each element, there may be primary and secondary facts that combine to establish the ultimate facts. The plaintiff will, therefore, need to prove the constituent primary and secondary facts in order to prove the ultimate facts.

Case preparation for identifying the facts that need to be proved may be assisted by creating a master chart of evidence for the case showing the elements of the claim, the sub-elements of each element of the claim, the facts for each sub-element that need to be proved and the means of proof of each fact, such as evidence of lay or expert witnesses, documents, admissions, or answers to notices to admit facts or interrogatories.

Case preparation in relation to proving the facts should be directed to the court’s adjudicative task of finding the facts. There are three steps in the court finding the facts: first, evaluating the evidence before the court in order to select the evidence from which the court will find the facts; second, finding the facts and interpreting their fact-meaning from the evidence that has been selected; and third, classifying the facts that have been found for their legal significance after their fact-meaning has been found.^[2]

Fourth, apply the law to the facts. The adjudication by the court of the PIL claim involves syllogistic reasoning. The rule of law formulated by the court in the first adjudicative task is the major premise of the syllogism. The facts found by the court in the second adjudicative task is the minor premise of the syllogism. The court draws, by deductive reasoning, a conclusion from these premises as to whether the claimed breach of law has or has not been established. The validity of that conclusion depends on the validity of the premises.^[3] Hence, the importance of the plaintiff establishing the major and minor premises.

Fifth, prove the relief. If a breach of law is established, the court has a discretion as to what, if any, relief should be granted to remedy the breach of law.^[4] The court’s exercise of this discretion similarly involves finding the law and the facts of relevance to granting the appropriate remedy. The plaintiff therefore needs to prepare its case to establish the law and facts that support granting the remedy sought.

Plaintiffs need not only to prepare their own case but also to anticipate and address the defendant’s case. There is a need to anticipate the arguments the defendant is likely to raise and formulate how these arguments can be pre-empted or rebutted. For example:

• Interlocutory applications — an example is the defendant seeking an order that the plaintiff lodge security for costs in the event that the plaintiff is unsuccessful in the litigation.^[5] What should be the plaintiff’s response? One response might be to rely on rules of court that protect public interest litigants from having to provide security for costs.^[6]
• Challenges to the elements of the claim — the plaintiff needs to anticipate and address the defence arguments that certain elements of the claim will not be established. An example might be that causation in climate change litigation has not been established.
• Arguments of law and fact by the plaintiff to establish causation — an example might be to adduce evidence on climate attribution science to establish causation.^[7]
• Defences to the claim — the plaintiff needs to anticipate and address the defences to the claim that the defendant is likely to raise and call evidence to rebut those defences.
• Decline to grant relief — the plaintiff needs to rebut any argument that the court should decline to grant relief because of prejudice to the defendant if relief is granted and to establish that the balance of convenience favours the grant of relief.