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 DETAILED CONTENTS

Preface xxiii
Abbreviations xxv
Table of Cases xxvii
Table of Primary Legislation liii
Table of Secondary Legislation lix
Table of Protocols and Guidance lxxviii
Table of European Legislation lxxxi
Table of International Treaties and Conventions lxxxii

1 INTRODUCTION 1

A THE LEGAL PROFESSION 2

B LAWYERS’ DUTIES 2
C INITIAL INSTRUCTIONS 3
D CONFIDENTIALITY AND CONFLICT OF INTEREST 5
E PRE-ACTION CORRESPONDENCE 5
F MAIN STAGES IN COURT PROCEEDINGS 6

2 FUNDING LITIGATION 10

A DUTY TO ADVISE CLIENTS ON FUNDING 10

B TRADITIONAL RETAINER 11
C LEGAL EXPENSES INSURANCE 13
D AFTER THE EVENT INSURANCE 13
E CHAMPERTY, THE INDEMNITY PRINCIPLE, AND JACKSON 14
F CONDITIONAL FEE AGREEMENT 15
G DAMAGES-BASED AGREEMENT 16
H THIRD PARTY FUNDING 16
I LEGAL AID 17
J IRRECOVERABILITY OF COSTS OF SETTING UP FUNDING 20
Key points summary 20

3 THE CIVIL COURTS 22

A COURT COMPOSITION AND ADMINISTRATION 22

B JURISDICTION 25
C HIGH COURT DIVISIONS 28
viii Detailed Contents
D SPECIALIST COURTS 29
Key points summary 31

4 OVERRIDING OBJECTIVE AND HUMAN RIGHTS 32

A SOURCES OF PROCEDURAL LAW 32

B THE OVERRIDING OBJECTIVE 35
C ACTIVE CASE MANAGEMENT 35
D INTERPRETING THE CIVIL PROCEDURE RULES 37
E APPLICATION OF THE OVERRIDING OBJECTIVE 38
F HUMAN RIGHTS 40
G PROCEDURAL ASPECTS ON RAISING HUMAN RIGHTS POINTS 45
Key points summary 47

5 PRE-ACTION PROTOCOLS 48

A PRE-ACTION PROTOCOLS 48
B CASES NOT COVERED BY PRE-ACTION PROTOCOLS 49
C PROFESSIONAL NEGLIGENCE PRE-ACTION PROTOCOL 49
D PERSONAL INJURY PROTOCOL 52
E INSTRUCTION OF EXPERTS 53
F LIMITATION DIFFICULTIES 55
G SANCTIONS FOR NON-COMPLIANCE 55
H ROAD TRAFFIC ACT 1988 56
I MOTOR INSURERS’ BUREAU 56
J PRE-ACTION PART 36 OFFERS 57
Key points summary 58

6 ISSUING AND SERVING 59

A CLAIM FORM 59
B JURISDICTIONAL ENDORSEMENTS 62
C PARTICULARS OF CLAIM 62
D SPECIALIST CLAIMS 62
E ISSUING A CLAIM FORM 65
F SERVICE 66
G SERVICE OF THE CLAIM FORM 67
H DEEMED DATE OF SERVICE OF THE CLAIM FORM 78
I SERVICE OF DOCUMENTS OTHER THAN A CLAIM FORM 79
J DEEMED DATE OF SERVICE (NON-CLAIM FORM DOCUMENTS) 79
 Detailed Contents ix

K CERTIFICATE OF SERVICE 80
L IRREGULAR SERVICE 80
M FILING 82
Key points summary 83

7 RENEWAL OF PROCESS 84

A POWER TO RENEW 84
B CLAIMS IN RESPECT OF CARGO 87
C MULTIPLE DEFENDANTS 87
D EFFECT OF STAY 87
E PROCEDURE ON SEEKING AN EXTENSION 87
F CHALLENGING AN ORDER GRANTING AN EXTENSION 88

8 PART 8 CLAIMS AND PETITIONS 89

A PART 8 CLAIMS 89
B PETITIONS 91
C WINDING-UP PETITIONS 91

9 PERSONAL INJURY CLAIMS UNDER £25,000 99

A CASES COVERED BY THE RTA AND EL/PL PROTOCOLS 100

B RTA PROTOCOL 100
C STAGE 1: CLAIM NOTIFICATION 101
D STAGE 2: MEDICAL EVIDENCE AND NEGOTIATION 104
E STAGE 3: PART 8 CLAIM TO DETERMINE QUANTUM 106
F CHILD SETTLEMENT APPLICATIONS 108
G LIMITATION 109
H FIXED COSTS UNDER THE RTA AND EL/PL PROTOCOLS 109
I CASES WHERE PARTIES CAN STOP FOLLOWING THE RTA OR EL/PL PROTOCOLS 109
Key points summary 110

10 ALTERNATIVE DISPUTE RESOLUTION 111

A ADR PROCESSES 111

B ADR OR COURT PROCEEDINGS 112
C COST OF ADR 114
D REFERENCE TO ADR 114
E COURT INVOLVEMENT IN ADR 115
Key points summary 117
x Detailed Contents

11 SERVICE OUTSIDE THE JURISDICTION 118

A SERVICE ON A FOREIGN DEFENDANT WITHIN THE JURISDICTION 119

B SUBMISSION TO THE JURISDICTION 119
C CASES OUTSIDE THE GENERAL RULES 120
D RECAST JUDGMENTS REGULATION 121
E ASSUMED JURISDICTION 124
F SERVICE ABROAD 127
G PREVENTING CONFLICTS IN JURISDICTION 128
H INTERIM RELIEF IN SUPPORT OF FOREIGN PROCEEDINGS 130
I JUDGMENT IN DEFAULT 131
Key points summary 131

12 RESPONDING TO A CLAIM 132

A TIME FOR RESPONDING 132

B ADMISSIONS 132
C DEFENCES 133
D ACKNOWLEDGMENT OF SERVICE 133
E AGREED EXTENSIONS 134
F DISPUTING SERVICE OR THE COURT’S JURISDICTION 134
G TRANSFER 135
H SPECIALIST CLAIMS 136
Key points summary 136

13 DEFAULT JUDGMENT 137

A WHEN DEFAULT JUDGMENT MAY BE ENTERED 137

B EXCLUDED CASES 139
C PROCEDURE FOR ENTERING DEFAULT JUDGMENT 139
D FINAL JUDGMENT AND JUDGMENT FOR AN AMOUNT TO BE DECIDED 141
E DECIDING THE AMOUNT OF DAMAGES: DISPOSAL HEARINGS 142
F SETTING ASIDE DEFAULT JUDGMENTS 143
G STAY OF UNDEFENDED CASES 146
Key points summary 146

14 STATEMENTS OF CASE 147

A FORM OF STATEMENTS OF CASE 148

B PARTICULARS OF CLAIM 151
 Detailed Contents xi

C DEFENCE 154
D COUNTERCLAIMS AND SET-OFFS 157
E REPLY AND DEFENCE TO COUNTERCLAIM 159
F SUBSEQUENT STATEMENTS OF CASE 159
G DISPENSING WITH STATEMENTS OF CASE 159
H SCOTT SCHEDULES 160
I INTERRELATION WITH CASE MANAGEMENT 160
J USE OF STATEMENTS OF CASE AT TRIAL 161

15 TRACK ALLOCATION AND CASE MANAGEMENT 162

A PROCEDURAL JUDGES 163

B DOCKETING 163
C PROVISIONAL TRACK ALLOCATION 164
D FILING DIRECTIONS QUESTIONNAIRES 164
E TRACK ALLOCATION 173
F ALLOCATION RULES 174
G NOTICE OF ALLOCATION 176
H ALLOCATION DIRECTIONS 176
I ADR AND STAYS TO ALLOW FOR SETTLEMENT 177
J TRANSFER TO APPROPRIATE COURT 178
K TRIAL IN THE ROYAL COURTS OF JUSTICE OR ROLLS BUILDING 178
L CHANGING TRACKS 178
M SUBSEQUENT CASE MANAGEMENT 179
N PRE-TRIAL CHECKLISTS 179
O SHORTER TRIALS AND FLEXIBLE TRIALS SCHEMES 181
Key points summary 182

16 COSTS MANAGEMENT 183

A ELEMENTS OF COSTS MANAGEMENT 184

B CASES GOVERNED BY COSTS MANAGEMENT 184
C COSTS BUDGETS 185
D COSTS MANAGEMENT ORDERS 187
E COSTS BUDGETS AND CASE MANAGEMENT 188
F JUDICIAL CONTROL OF COSTS BUDGETS 189
G IMPACT ON COSTS ORDERS 189
Key points summary 190
xii Detailed Contents

17 COSTS CAPPING AND PROTECTION 191

A COSTS CAPPING ORDERS 191

B BEDDOE ORDERS 192
C PROTECTIVE COSTS ORDERS 193
D JUDICIAL REVIEW COSTS CAPPING 194
E AARHUS CONVENTION CASES 194
F COSTS LIMITATION ORDERS 195
Key points summary 195

18 REQUESTS FOR FURTHER INFORMATION 196

A THE REQUEST FOR FURTHER INFORMATION 197

B THE RESPONSE 198
C OBJECTING TO REQUESTS 200
D ORDERS FOR RESPONSES 200
E PRINCIPLES 201
F COLLATERAL USE 202

19 PARTIES AND JOINDER 203

A DESCRIPTION OF PARTIES 203

B PARTICULAR CLASSES OF PARTY 203
C LITIGANTS IN PERSON 213
D VEXATIOUS LITIGANTS 214
E JOINDER 214
F REPRESENTATIVE PROCEEDINGS 215
G REPRESENTATION OF UNASCERTAINED PERSONS 216
H INTERVENTION 216
I CONSOLIDATION 217
J STAKEHOLDER CLAIMS 217
K ASSIGNMENT 218
L GROUP LITIGATION 219
Key points summary 219

20 ADDITIONAL CLAIMS UNDER PART 20 221

A NATURE OF ADDITIONAL CLAIMS 221

B RELATED PROCEDURES 221
C SCOPE OF PART 20 222
 Detailed Contents xiii

D STATEMENTS OF CASE IN ADDITIONAL CLAIMS 226

E CONTRIBUTION NOTICES 228
F PROCEDURE 228
G RELATION TO THE MAIN CLAIM 230
Key points summary 230

21 LIMITATION 231

A LIMITATION PERIODS 231

B ACCRUAL OF CAUSE OF ACTION 235
C CALCULATING THE LIMITATION PERIOD 241
D DISCRETION 244
E EQUITABLE REMEDIES, LACHES, AND ACQUIESCENCE 247
Key points summary 248

22 AMENDMENT 249

A AMENDMENT BY CONSENT 249

B AMENDMENT WITHOUT PERMISSION 249
C PRINCIPLES GOVERNING PERMISSION TO AMEND 250
D AMENDMENT AFTER THE EXPIRY OF THE LIMITATION PERIOD 254
E PROCEDURE ON AMENDING 259
Key points summary 260

23 INTERIM APPLICATIONS 261

A JURISDICTIONAL RULES 262

B TIME TO APPLY 262
C PRE-ACTION INTERIM REMEDIES 263
D OBLIGATION TO APPLY EARLY 263
E APPLICATIONS WITHOUT NOTICE 264
F APPLICATIONS WITH NOTICE 267
G INTERIM HEARINGS 274
H SUMMARY DETERMINATION OF INTERIM COSTS 275
I VARYING OR REVOKING INTERIM ORDERS 276
Key points summary 276

24 SUMMARY JUDGMENT 277

A TIME FOR APPLYING FOR SUMMARY JUDGMENT 277

B DEFENDANT’S APPLICATION: NO DEFAULT JUDGMENT 278
xiv Detailed Contents
C EXCLUDED PROCEEDINGS 278
D PROCEDURE 279
E ORDERS AVAILABLE 279
F AMENDMENT AT HEARING 289
G SOME OTHER COMPELLING REASON FOR A TRIAL 289
H DIRECTIONS ON SUMMARY JUDGMENT HEARING 290
I SPECIFIC PERFORMANCE, RESCISSION, AND FORFEITURE IN PROPERTY CASES 290
Key points summary 290

25 INTERIM PAYMENTS 291

A PROCEDURE 291
B GROUNDS 292
C AMOUNT TO BE ORDERED 294
D FURTHER APPLICATIONS 295
E NON-DISCLOSURE 295
F ADJUSTMENT 296
Key points summary 296

26 SECURITY FOR COSTS 297

A PROCEDURE 297
B THE RESPONDENT 299
C CONDITIONS FOR GRANTING SECURITY FOR COSTS 299
D DISCRETION TO ORDER SECURITY FOR COSTS 302
E AMOUNT 304
F ORDER 305
G SUCCESS BY THE CLAIMANT 305
Key points summary 305

27 SMALL CLAIMS TRACK 306

A PROVISIONS OF THE CPR THAT DO NOT APPLY 306

B STANDARD DIRECTIONS 307
C SPECIAL DIRECTIONS 307
D DETERMINATION WITHOUT A HEARING 308
E FINAL HEARINGS 308
F COSTS 308
G REHEARINGS 309
 Detailed Contents xv

28 FAST TRACK 310

A ALLOCATION DIRECTIONS 310

B LISTING DIRECTIONS 313
C STANDARD FAST TRACK TIMETABLE 313
D AGREED DIRECTIONS 314
E VARYING THE DIRECTIONS TIMETABLE 314
F LISTING FOR TRIAL 314
G FAST TRACK TRIALS 315
H COSTS IN FAST TRACK CASES 316
Key points summary 316

29 MULTI-TRACK 317

A AGREED DIRECTIONS 317

B CASE MANAGEMENT CONFERENCES 319
C FIXING THE DATE FOR TRIAL 322
D PRE-TRIAL CHECKLISTS 322
E LISTING HEARINGS 323
F PRE-TRIAL REVIEW 323
G DIRECTIONS GIVEN AT OTHER HEARINGS 324
H VARIATION OF CASE MANAGEMENT TIMETABLE 325
Key points summary 325

30 STRIKING OUT, DISCONTINUANCE, AND STAYS 326

A THE MAIN RULE 327

B PROCEDURE ON APPLICATIONS MADE BY PARTIES 327
C REFERENCES BY COURT OFFICERS 328
D GENERAL TEST 328
E NO REASONABLE GROUNDS FOR BRINGING OR DEFENDING THE CLAIM 329
F ABUSE OF PROCESS 330
G OBSTRUCTING THE JUST DISPOSAL OF THE PROCEEDINGS 333
H POWERS AFTER A STRIKING-OUT ORDER IS MADE 333
I DISCONTINUANCE 334
J STAYS 335
Key points summary 337
xvi Detailed Contents

31 DISCLOSURE 338

A LAWYERS’ RESPONSIBILITIES 341

B CLIENTS’ RESPONSIBILITIES 342
C STAGE WHEN DISCLOSURE TAKES PLACE 342
D DISCLOSURE ORDERS 342
E STANDARD DISCLOSURE 343
F MENU OPTION DISCLOSURE 345
G BUSINESS AND PROPERTY COURT DISCLOSURE 348
H DUTY TO SEARCH 349
I LIST OF DOCUMENTS 350
J PRIVILEGE 351
K INSPECTION 360
L ORDERS IN SUPPORT OF DISCLOSURE 360
M DOCUMENTS REFERRED TO IN STATEMENTS OF CASE, ETC. 362
N ADMISSION OF AUTHENTICITY 362
O COLLATERAL USE 362
Key points summary 363

32 WITNESS STATEMENTS, AFFIDAVITS, AND DEPOSITIONS 364

A TYPES OF WRITTEN EVIDENCE 364

B WITNESS STATEMENTS 365
C WITNESS SUMMARIES 369
D AFFIDAVITS AND AFFIRMATIONS 370
E DEPOSITIONS 371

33 HEARSAY 372

A THE HEARSAY RULE 372

B REAL EVIDENCE 373
C ADMISSIBILITY OF HEARSAY EVIDENCE 373
D NOTICE PROCEDURE 375
E TRIAL 377
Key points summary 378

34 ADMISSIONS AND DOCUMENTARY EVIDENCE 379

A NATURE OF ADMISSIONS 379

B PRE-ACTION ADMISSIONS OF LIABILITY 380
C PERMISSION TO WITHDRAW AN ADMISSION 380
 Detailed Contents xvii

D NOTICE TO ADMIT FACTS 381

E PROVING DOCUMENTS 383

35 EXPERTS 385

A ADMISSIBILITY OF EXPERT EVIDENCE 385

B CONTROL OF EVIDENCE 388
C PRIVILEGED NATURE OF EXPERTS’ REPORTS 388
D DISCLOSURE OF EXPERTS’ REPORTS 389
E WRITTEN QUESTIONS TO EXPERTS 393
F WITHOUT PREJUDICE DISCUSSION 394
G EXAMINATIONS BY EXPERTS 394
H TRIAL 396
I EXPERTS’ IMMUNITY FROM SUIT 398
J USE OF EXPERTS’ REPORTS AFTER TRIAL 398
Key points summary 398

36 OFFERS TO SETTLE 399

A INTRODUCTION 399
B CALDERBANK OFFERS 400
C OFFERS TO SETTLE 400
D MAKING A PART 36 OFFER 407
E ACCEPTANCE OF A PART 36 OFFER 407
F REJECTIONS, COUNTER-OFFERS, AND SUBSEQUENT OFFERS 409
G WITHDRAWAL AND CHANGE OF PART 36 OFFERS 409
H FAILING TO OBTAIN JUDGMENT MORE ADVANTAGEOUS THAN
A PART 36 OFFER 410
I ADVISING ON PART 36 OFFERS 412
J NON-DISCLOSURE TO JUDGE 413
K PART 36 OFFERS IN APPEALS 413
Key points summary 413

37 SANCTIONS 414

A NON-COMPLIANCE WITH PRE-ACTION PROTOCOLS 414

B NON-COMPLIANCE WITH THE CPR 414
C NON-COMPLIANCE WITH DIRECTIONS 415
D PRESERVATION OF TRIAL DATE 416
xviii Detailed Contents
E APPLICATION FOR SANCTIONS 416
F UNLESS ORDERS 418
G NON-COMPLIANCE WITH AN UNLESS ORDER 418
H EXTENDING TIME AND CORRECTING ERRORS 419
I RELIEF FROM SANCTIONS AND SETTING ASIDE 420
J IMPLIED SANCTIONS DOCTRINE 422
Key points summary 423

38 LISTING AND PRE-TRIAL REVIEWS 424

A LISTING FOR TRIAL 424

B PRE-TRIAL REVIEWS 428
C LISTING IN THE ROYAL COURTS OF JUSTICE 428
D ADJOURNMENTS 428

39 TRIAL 429

A WITNESSES 429
B TRIAL DOCUMENTATION 432
C TRIAL LOCATION 433
D ALLOCATION TO JUDICIARY 434
E IMPARTIALITY OF JUDGE 434
F PUBLIC OR PRIVATE HEARING 435
G RIGHTS OF AUDIENCE AND THE RIGHT TO CONDUCT LITIGATION 436
H McKENZIE FRIENDS 436
I CONDUCT OF THE TRIAL 437
J PRELIMINARY ISSUES 440
K TRIAL BY JURY 441
L NON-ATTENDANCE AT TRIAL 442
Key points summary 442

40 REFERENCES TO THE COURT OF JUSTICE OF THE EUROPEAN UNION 443

A QUESTIONS WHICH MAY BE REFERRED 443

B MANDATORY REFERENCES 443
C DISCRETIONARY REFERENCES 444
D PROCEDURE IN ENGLAND 446
E PROCEDURE IN THE COURT OF JUSTICE OF THE EUROPEAN UNION 447
F COSTS 447
 Detailed Contents xix

41 JUDGMENTS AND ORDERS 448

A SETTLEMENTS 448
B ORDERS MADE AT HEARINGS 449
C FORM OF JUDGMENTS AND ORDERS 450
D GENERAL RULES RELATING TO DRAWING UP ORDERS AND JUDGMENTS 455
E REGISTER OF JUDGMENTS 457
Key points summary 457

42 INTERIM INJUNCTIONS 458

A JUDGES ABLE TO GRANT INJUNCTIONS 459

B PRE-ACTION APPLICATIONS FOR INTERIM INJUNCTIONS 459
C APPLICATIONS DURING PROCEEDINGS 461
D PRINCIPLES 462
E DEFENCES 474
F THE ORDER 475
G UNDERTAKINGS 477
H INQUIRY AS TO DAMAGES 478
I DISCHARGE 479
J BREACH 479
K EFFECT OF NOT APPLYING FOR INTERIM RELIEF 480
Key points summary 480

43 FREEZING INJUNCTIONS 481

A PROCEDURE 481
B PRINCIPLES 482
C THE ORDER 486
D EFFECT OF THE ORDER 490
E VARIATION OR DISCHARGE OF A FREEZING INJUNCTION 490
F FREEZING INJUNCTIONS AFTER JUDGMENT 491
G PROPRIETARY CLAIMS 492
H WRIT NE EXEAT REGNO 492
Key points summary 492

44 SEARCH ORDERS 493

A PROCEDURE 493
B PRINCIPLES 494
xx Detailed Contents
C REAL RISK OF DESTRUCTION 495
D FORM OF THE ORDER 496
E PRACTICE ON EXECUTION OF SEARCH ORDERS 496
F PRIVILEGE 498
G DISCHARGE AND VARIATION OF SEARCH ORDERS 499
H AFTER EXECUTION 499
I COLLATERAL USE 500
Key points summary 500

45 NORWICH PHARMACAL AND RELATED DISCLOSURE ORDERS 501

A NORWICH PHARMACAL ORDERS 501

B MERE WITNESS RULE 504
C BANKERS TRUST ORDERS 504
D DISCLOSURE BEFORE PROCEEDINGS START 505
E DISCLOSURE BY NON-PARTIES 507
F DISCLOSURE OF MEDIATION EVIDENCE 508
G INSPECTION OF PROPERTY DURING PROCEEDINGS 508
H INTERIM DELIVERY-UP OF GOODS 509
Key points summary 510

46 COSTS 511

A COSTS ORDERS: GENERAL PRINCIPLES 512

B COSTS FOLLOW THE EVENT 514
C RANGE OF POSSIBLE COSTS ORDERS 517
D INTERIM COSTS ORDERS 518
E INFORMING THE CLIENT 520
F INDEMNITY PRINCIPLE 520
G BASIS OF QUANTIFICATION 521
H PROPORTIONALITY 521
I SUMMARY ASSESSMENT 522
J DETAILED ASSESSMENT 523
K FAST TRACK FIXED COSTS 524
L FIXED AND SCALE COSTS 525
M COSTS AND TRACK ALLOCATION 525
N PUBLICLY FUNDED LITIGANTS 525
O PRO BONO COSTS ORDERS 526
P COSTS AGAINST NON-PARTIES 526
 Detailed Contents xxi

Q WASTED COSTS ORDERS 526

Key points summary 528

47 QUALIFIED ONE-WAY COSTS SHIFTING 529

A CASES WHERE QOCS APPLIES 529

B EFFECT OF QOCS 530
C LOSS OF QOCS PROTECTION 532
Key points summary 533

48 ENFORCEMENT 534

A ENFORCEMENT OF MONEY JUDGMENTS 534

B ENFORCEMENT OF JUDGMENTS FOR THE DELIVERY OF GOODS 543
C ENFORCEMENT OF JUDGMENTS FOR THE POSSESSION OF LAND 543
D RECEIVERS BY WAY OF EQUITABLE EXECUTION 544
E CONTEMPT OF COURT 544
F ENFORCEMENT OF FOREIGN JUDGMENTS 546
Key points summary 547

49 JUDICIAL REVIEW 548

A PARTIES 548
B LOCUS STANDI 549
C PUBLIC LAW 549
D REMEDIES IN JUDICIAL REVIEW 551
E JUDICIAL REVIEW PRE-ACTION PROTOCOL 552
F APPLYING FOR PERMISSION TO PROCEED 553
G SUBSTANTIVE HEARING 555
H CONVERSION TO A COMMON LAW CLAIM 557
I CONSENT ORDERS 558
Key points summary 558

50 APPEALS 559

A ROUTES OF APPEAL 560

B PERMISSION TO APPEAL 561
C TIME FOR APPEALING 564
D PROCEDURE ON APPEALING 565
E RESPONDENT’S NOTICE 566
F APPLICATIONS WITHIN APPEALS 567
xxii Detailed Contents
G STAY 568
H STRIKING OUT APPEAL NOTICES AND SETTING ASIDE OR
IMPOSING CONDITIONS 568
I HEARING OF APPEALS 568
J APPEAL COURT’S POWERS 571
K APPEALS BY WAY OF CASE STATED 573
L APPEALS TO THE SUPREME COURT 573
Key points summary 574

Index 575
 PREFACE

Any lawyer practising in the civil courts needs a thorough grasp of practice and procedure.
Indeed, knowledge of procedure is probably as important as knowledge of the substantive
law. It is not sufficient to have a strong case on the law and facts. It is also important to
be able to advance a claim effectively and efficiently from its early stages through to trial
(if needs be) in order to ensure the client attains the best result possible given the strengths
and weaknesses of the case. Every year a great many cases are won and lost on purely pro-
cedural grounds. Further, good use of court procedure can result in a case being materially
strengthened. The converse is that poor use of procedure can cause avoidable harm to the
client’s prospects of success.
Civil procedure can be a very daunting subject. First, there are a number of statutes
dealing with the jurisdiction of the civil courts. Secondly, there is a substantial rule book
comprising detailed rules of court (the Civil Procedure Rules 1998 (SI 1998/3132))
supplemented by numerous practice directions. The Rules and practice directions are
available at <http://www.justice.gov.uk>. They are also printed in full in practitioners’
books, such as Blackstone’s Civil Practice and the White Book. There are also official
court guides that deal with the practice, sometimes in considerable detail, in the Queen’s
Bench and Chancery Divisions of the High Court and also the specialist courts, such
as the Commercial Court. Statutory provisions, rules, and practice directions can only
deal with what should happen in the general run of cases. The courts are, on a day-to-
day basis, faced with claims that are unusual, with cases where exceptions should be
made to rules worded in a general way or where a more sophisticated approach may
be required, and with cases that have not been conducted fully in accordance with the
rules. There is therefore a substantial body of relevant case law dealing with procedural
issues. Furthermore, there are some areas where procedural and substantive law issues
converge.
What the student and newly qualified litigator need is an accessible introduction to the
subject. I hope this new edition of this book will continue to perform this function. It
seeks to explain the various procedures that either may or must be followed as a claim
progresses from its early stages through its interim stages and on to trial, enforcement,
and any possible appeal in a straightforward way, but with sufficient detail for the new
practitioner to be able to cope with most problems that commonly arise. A number of
forms and precedents are included in this book to bring to life the procedures that are
discussed. Often they are far shorter than ones that would be met in practice in order to
concentrate on what the documents look like, and it should also be borne in mind that
there are usually several different approaches used by different lawyers in drafting court
documents.
The 22nd edition includes all the changes up to those published on 10 March 2019.
These include a range of statutory instruments and updates to the Civil Procedure Rules
and practice directions, up to and including the Civil Procedure (Amendment) Rules
2019 and the 105th Update. I have included references to the SRA Standards and Regu-
lations 2019, which were published in draft in February 2019. These are expected to
come into force in July 2019. I am grateful to Derek French, who referred me to the
Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, which were laid
xxiv Preface
before Parliament on 8 March 2019. Whether these Regulations actually come into force
depends on what transpires on the Brexit arrangements, so I have made only passing
references to the Regulations in this edition.
Over the years I have benefitted from the expertise and experience of numerous colleagues
at the Treasury Solicitor’s Office, chambers, and the City Law School. Carlotta Fanton and
the staff of Oxford University Press have done an excellent job in the preparation of the
new edition. I am especially grateful to my wife Wendy for her encouragement and support
during the period when the book was being written.
Stuart Sime
London
March 2019
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Literature - 2 . Studies in Pessimism - - < = . Outlines of the
Philosophy of Religion . The Problem of Reality - - . First Steps in
Philosophy” - - . The Influence of Buddhism on Primitive Christianity
- - . Religion 2 E : 2 , The Sexes Compared - - f : The Gospel of
Buddha - E z LONDON : A. SCHOPENHAUER. A. SCHOPENHAUER. A.
ScHOPENHAUER. A. SCHOPENHAUER. A. SCHOPENHAUER. H. Lorzz,
HB. BAX W. M. Sater. A. LIL. G. DE MoLInaRIi. BE. von HartTMann.
Pav CaRvs. SWAN SONNENSCHEIN & Co., Limrtep.
 THE ART OF CONTROVERSY Hnd Other Posthumous Papers
BY ARTHUR SCHOPENHAUER Si quis, toto die currens, pervenit ad
vesperam, satis est PETRARCH : DE VERA SAPIENTI4 SELECTED
AND TRANSLATED BY T. BAILEY SAUNDERS, M.A. LONDON SWAN
SONNENSCHEIN & CO., Lr. NEW YORK: MACMILLAN & CO., Ln. 1896
ABERDEEN UNIVERSITY PRESS.
 TRANSLATOR’S PREFACE. THE volume now before the
reader is a tardy addition to a series in which I have endeavoured to
present Schopenhauer’s minor writings in an adequate form. Its
contents are drawn entirely from his _posthumous papers. A
selection of them was given to the world some three or four years
after his death by his friend and literary executor, Julius Frauenstiidt,
who, for this and other offices of piety, has received less recognition
than he deserves. The papers then published have recently been
issued afresh, with considerable additions and corrections, by Dr.
Eduard Grisebach, who is also entitled to gratitude for the care with
which he has followed the text of the manuscripts, now in the Royal
Library at Berlin, and for having drawn attention—although in terms
that are unnecessarily severe—to a number of faults and failings on
the part of the previous editor. The fact that all Schopenhauer’s
works, together with a volume of his correspondence, may now be
obtained in a certain cheap collection of the best national and
foreign literature displayed in almost every bookshop in Germany, is
sufficient evidence that in his own country the writer's popularity is
still very great; nor does the demand for translations indicate that
his fame has at all diminished abroad. The
 vi TRANSLATOR’S PREFACE, favour with which the new
edition of his posthumous papers has been received induces me,
therefore, to resume a task which I thought, five years ago, that I
had finally completed; and it is my intention to bring out one more
volume, selected partly from these papers and partly from his
Parerga. A small part of the essay on The Art of Controversy was
published in Schopenhauer’s lifetime, in the chapter of the Parerga
headed Zur Logik und Dialektik. The intelligent reader will discover
that a good deal of its contents is of an ironical character. As regards
the last three essays I must observe that I have omitted such
passages as appear to be no longer of any general interest or
otherwise unsuitable. I must also confess to having taken one or two
liberties with the titles, in order that they may the more effectively
fulfil the purpose for which titles exist. In other respects I have
adhered to the original with the kind of fidelity which aims at
producing an impression as nearly as possible similar to that
produced by the original. TBs, February, 1896.
 CONTENTS. PAGE THE ArT oF CONTROVERSY— 1.
Pretimtnary: Locic anp DIALECTIC - : 1 2. THe Basis oF ALL
DIALECTIC - : - - =a lS 3. STRATAGEMS) - - - - - - - =e 25 On THE
COMPARATIVE PLACE OF INTEREST AND BEAUTY IN Works OF ART
2 - - - - - - - 49 PsycHOLOGICAL OBSERVATIONS - - : - - = '63 On
THE WispoM oF LIFE: APHORISMS - : - - 5 GENIUS AND VIRTUE - ‘ -
: F ; 52599
The text on this page is estimated to be only 41.25%
accurate

by aoe in
 THE ART OF CONTROVERSY. PRELIMINARY: LOGIC AND
DIALECTIC. By the ancients, Logic and Dialectic were used as
synonymous terms; although NoyifecPar, “to think over, to consider,
to calculate,” and 6dsaréyeoOar, “to converse,’ are two very different
things. The name Dialectic was, as we are informed by Diogenes
Laertius, first used by Plato; and in the Phedrus, Sophist, Republic,
bk. vii., and elsewhere, we find that by Dialectic he means the
regular employment of the reason, and skill in the practice of it.
Aristotle also uses the word in this sense; but, according to
Laurentius Valla, he was the first to use Logie too in a similar way.!
Dialectic, therefore, seems to be an older word than Logic. Cicero
and Quintilian use the words in the same general signification.” 1He
speaks of ducxepeia: Aoyial, that is, ‘difficult points,” mpétacis
AoyiKh, amopia Aoy:Kh. 2 Cic. in Lucullo: Dialecticam inventam esse,
veri et falsi quasi disceptatricem. Topica, c. 2: Stoici enim judicandi
vias diligenter persecuti sunt, ea scientia, quum Dialecticen
appellant. Quint., lib. li., 12: Itague hee pars dialecticae, sive illam
disputatricem dicere malimus ; and with him this latter word appears
to be the Latin equivalent for Dialectic. (So far according to ‘‘ Petri
Rami dialectica, Audomari Talaei praelectionibus illustrata”. 1569.)
 2 THE ART OF CONTROVERSY. This use of the words as
synonymous terms lasted through the Middle Ages into modern
times; in fact, until the present day. But more recently, and in
particular by Kant, Dialectic has often been employed in a bad
sense, as meaning “the art of sophistical controversy”’; and hence
Logic has been preferred, as of the two the more innocent
designation. Nevertheless, both originally meant the same thing; and
in the last few years they have again been recognised as
synonymous. It is a pity that the words have thus been used from of
old, and that I am not quite at liberty to distinguish their meanings.
Otherwise, I should have preferred to define Logic (from éyos,
“word” and “reason, . which are inseparable) as “the science of the
laws of thought, that is, of the method of reason” ; and Dialectic
(from dsaréyer Oar; “ to converse ”—and every conversation
communicates either facts or opinions, that is to say, it is historical
or deliberative) as “the art of disputation,” in the modern sense of
the word. It is clear, then, that Logic deals with a subject of a purely
@ priora character, separable in definition from experience, namely,
the laws of thought, the process of reason or the Aoyos; the laws,
that is, which reason follows when it is left to itself and not
hindered, as in the case of solitary thought on the part of a rational
being who is in no way misled. Dialectic, on the other hand, would
treat of the intercourse between two rational beings who, because
they are rational, ought to think in common, but who, as soon as
they cease to agree like two clocks keeping exactly the same time,
create a disputation,
 LOGIC AND DIALECTIC. 3 or intellectual contest. Regarded
as purely rational beings, the individuals would, I say, necessarily be
in agreement, and their variation springs from the difference
essential to individuality; in other words, it is drawn from experience.
Logic, therefore, as the science of thought, or the science of the
process of pure reason, should be capable of being constructed @
priori. Dialectic, for the most part, can be constructed only @
posterior: ; that is to say, we may learn its rules by an experiential
knowledge of the disturbance which pure thought suffers through
the difference of individuality manifested in the intercourse between
two rational beings, and also by acquaintance with the means which
disputants adopt in order to make good against one another their
own individual thought, and to show that it is pure and objective.
For human nature is such that if A. and B. are engaged in thinking in
common, and are communicating their opinions to one another on
any subject, so long as it is not a mere fact of history, and A.
perceives that B.’s thoughts on one and the same subject are not the
same as his own, he does not begin by revising his own process of
thinking, so as to discover any mistake which he may have made,
but he assumes that the mistake has occurred in B.’s. In other
words, man is naturally obstinate ; and this quality in him is
attended with certain results, treated of in the branch of knowledge
which I should like to call Dialectic, but which, in order to avoid
misunderstanding, I shall call Controversial or Eristical Dialectic.
Accordingly, it is the branch of knowledge which treats of the
obstinacy natural to
 4 THE ART OF CONTROVERSY. man. Eristic is only a
harsher name for the same thing. : Controversial Dialectic is the art
of disputing, and of disputing in such a way as to hold one’s own,
whether one is in the right or the wrong—per fas et nefas.1_ A man
may be objectively in the right, and nevertheless in the eyes of
bystanders, and sometimes in his own, he may come off worst. For
example, I may advance a proof of some assertion, and my
adversary may refute the proof, and thus appear to have refuted the
assertion, for which there may, nevertheless, be other proofs. In this
case, of course, 1 According to Diogenes Laertius, v., 28, Aristotle
put Rhetoric and Dialectic together, as aiming at persuasion, 7d
m@avdy; and Analytic and Philosophy as aiming at truth. Aristotle
does, indeed, distinguish between (1) Logic, or Analytic, as the
theory or method of arriving at true or apodeictic conclusions; and
(2) Dialectic as the method of arriving at conclusions that are
accepted or pass current as true, éydota, probabilia ; conclusions in
regard to which it is not taken for granted that they are false, and
also not taken for granted that they are true in themselves, since
that is not the point. What is this but the art of being in the right,
whether one has any reason for being so or not, in other words, the
art of attaining the appearance of truth, regardless of its substance?
That is, then, as I put it above. Aristotle divides all conclusions into
logical and dialectical, in the manner described, and then into
eristical. (8) Hristic is the method by which the form of the
conclusion is correct, but the premisses, the materials from which it
is drawn, are not true, but only appear to be true. Finally (4)
Sophistic is the method in which the form of the conclusion is false,
although it seems correct. These three last properly belong to the
art of Controversial Dialectic, as they have no objective truth in view,
but only the appearance of it, and pay no regard to truth itself; that
is to say, they aim at victory. Aristotle’s book on Sophistie
Conclusions was edited apart from the others, and at a later date. It
was the last book of his Dialectic.
 LOGIC AND DIALECTIC. 5 my adversary and I change
places: he comes off best, although, as a matter of fact, he is in the
wrong. If the reader asks how this is, I reply that it is simply the
natural baseness of human nature. If human nature were not base,
but thoroughly honourable, we should in every debate have no other
aim than the discovery of truth; we should not in the least care
whether the truth proved to be in favour of the opinion which we
had begun by expressing, or of the opinion of our adversary. That
we should regard as a matter of no moment, or, at any rate, of very
secondary consequence; but, as things are, it is the main concern.
Our innate vanity, which is particularly sensitive in reference to our
intellectual powers, will not suffer us to allow that our first position
was wrong and our adversary’s right. The way out of this difficulty
would be simply to take the trouble always to form a correct
judgment. For this a man would have to think before he spoke. But,
with most men, innate vanity is accompanied by loquacity and innate
dishonesty. They speak before they think; and even though they
may afterwards perceive that they are wrong, and that what they
assert is false, they want it to seem the contrary. The interest in
truth, which may be presumed to have been their only motive when
they stated the proposition alleged to be true, now gives way to the
interests of vanity: and so, for the sake of vanity, what is true must
seem false, and what is false must seem true. However, this very
dishonesty, this persistence in a proposition which seems false even
to ourselves, has
 6 THE ART OF CONTROVERSY. something to be said for it.
It often happens that we begin with the firm conviction of the truth
of our statement; but our opponent’s argument appears to refute it.
Should we abandon our position at once, we may discover later on
that we were right after all ; the proof we offered was false, but
nevertheless there was a proof for our statement which was true.
The argument which would have been our salvation did not occur to
us at the moment. Hence we make it a rule to attack a counter-
argument, even though to all appearances it is true and forcible, in
the belief that its truth is only superficial, and that in the course of
the dispute another argument will occur to us by which we may
upset it, or succeed in confirming the truth of our statement. In this
way we are almost compelled to become dishonest ; or, at any rate,
the temptation to do so is very great. Thus it is that the weakness of
our intellect and the perversity of our will lend each other mutual
support; and that, generally, a disputant fights not for truth, but for
his proposition, as though it were a battle pro aris et focis. He sets
to work per fas et nefas; nay, as we have seen, he cannot easily do
otherwise. As a rule, then, every man will insist on maintaining
whatever he has said, even though for the moment he may consider
it false or doubtful. 1 Machiavelli recommends his Prince to make
use of every moment that his neighbour is weak, in order to attack
him; as otherwise his neighbour may do the same. If honour and
fidelity prevailed in the world, it would be a different matter; but as
these are qualities not to be expected, a man must not practise
them himself, because he will meet with a bad return. It is just the
same in a dispute: if I allow that my opponent is right as soon as
 LOGIC AND DIALECTIC. 7 To some extent every man is
armed against such a procedure by his own cunning and villainy. He
learns by daily experience, and thus comes to have his own natural
Dialectic, just as he has his own natural Logic. But his Dialectic is by
no means as safe a guide as his Logic. It is not so easy for any one
to think or draw an inference contrary to the laws of Logic; false
judgments are frequent, false conclusions very rare. A man cannot
easily be deficient in natural Logic, but he may very easily be
deficient in natural Dialectic, which is a gift apportioned in unequal
measure. In so far natural Dialectic resembles the faculty of
judgment, which differs in degree with every man; while reason,
strictly speaking, is the same. For it often happens that in a matter
in which a man is really in the right, he is confounded or refuted by
merely superficial arguments; and if he emerges victorious from a
contest, he owes it very often not so much to the correctness of his
judgment in stating his proposition, as to the cunning and address
with which he defended it. Here, as in all other cases, the best gifts
are born with a man; nevertheless, much may be done to make he
seems to be so, it is scarcely probable that he will do the same when
the position is reversed; and as he acts wrongly, I am compelled to
act wrongly too. It is easy to say that we must yield to truth, without
any prepossession in favour of our own statements; but we cannot
assume that our opponent will do it, and therefore we cannot do it
either. Nay, if I were to abandon the position on which I had
previously bestowed much thought, as soon as it appeared that he
was right, it might easily happen that I might be misled by a
momentary impression, and give up the truth in order to accept an
error,
 8 THE ART OF CONTROVERSY. him a master of this art by
practice, and also by a consideration of the tactics which may be
used to defeat an opponent, or which he uses himself for a similar
purpose. Therefore, even though Logic may be of no very real,
practical use, Dialectic may certainly be so; and Aristotle, too, seems
to me to have drawn up his Logic proper, or Analytic, as a foundation
and preparation for his Dialectic, and to have made this his chief
business. Logic is concerned with the mere form of propositions;
Dialectic, with their contents or matter—in a word, with their
substance. It was proper, therefore, to consider the general form of
all propositions before proceeding to particulars. — Aristotle does
not define the object of Dialectic as exactly as I have done it here;
for while he allows that its principal object is disputation, he declares
at the same time that it is also the discovery of truth Again, he says,
later on, that if, from the philosophical point of view, propositions
are dealt with according to their truth, Dialectic regards them
according to their plausibility, or the measure in which they will win
the approval and assent of others.2 He is aware that the objective
truth of a proposition must be distinguished and separated from the
way in which it is pressed home, and approbation won for it; but he
fails to draw a sufficiently sharp distinction between these two
aspects of the matter, so as to reserve Dialectic for the latter alone.*
The 1 Topica, bk. i., 2. 2 7b., 12. 8 On the other hand, in his book
De Sophisticis Elenchis, he takes too much trouble to separate
Dialectic from Sophistic and Eristic,
 LOGIC AND DIALECTIC. 9 rules which he often gives for
Dialectic contain some of those which properly belong to Logic; and
hence where the distinction is said to consist in this, that dialectical
conclusions are true in their form and their contents, while
sophistical and eristical conclusions are false. Eristic so far differs
from Sophistic that, while the master of Eristic aims at mere victory,
the Sophist looks to the reputation, and with it, the monetary
rewards which he will gain. But whether a proposition is true in
respect of its contents is far too uncertain a matter to form the
foundation of the distinction in question; and it is a matter on which
the disputant least of all can arrive at certainty; nor is it disclosed in
any very sure form even by the result of the disputation. Therefore,
when Aristotle speaks of Dialectic, we must include in it Sophistic,
Eristic, and Peirastic, and define it as ‘“‘ the art of getting the best of
itin a dispute,” in which, unquestionably, the safest plan is to be in
the right to begin with; but this in itself is not enough in the existing
disposition of mankind, and, on the other hand, with the weakness
of the human intellect, it is not altogether necessary. Other
expedients are required, which, just because they are unnecessary
to the attainment of objective truth, may also be used when a man
is objectively in the wrong; and whether or not this is the case, is
hardly ever a matter of complete certainty. I am of opinion,
therefore, that a sharper distinction should be drawn between
Dialectic and Logic than Aristotle has given us; that to Logic we
should assign objective truth as far as it is merely formal, and that
Dialectic should be confined to the art of gaining one’s point, and
contrarily, that Sophistic and Eristic should not be distinguished from
Dialectic in Aristotle’s fashion, since the difference which he draws
rests on objective and material truth ; and in regard to what this is,
we cannot attain any clear certainty before discussion ; but we are
compelled, with Pilate, to ask, What is truth? For truth is in the
depths, év Bude 4 aAq@era (a saying of Democritus, Diog. Laert.,
ix.,72). Two men often engage in a warm dispute, and then return to
their homes each of the other’s opinion, which he has exchanged for
his own. It is easy to say that in every dispute we should have no
other aim than the advancement of truth; but before dispute no one
knows where it is, and through his opponent’s arguments and his
own a man is misled. 2
 10 THE ART OF CONTROVERSY. it appears to me that he
has not provided a clear solution of the problem. We must always
keep the subject of one branch of knowledge quite distinct from that
of any other. To form a clear idea of the province of Dialectic, we
must pay no attention to objective truth, which is an affair of Logic;
we must regard it simply as the art of getting the best of it in a
dispute, which, as we have seen, is all the easier if we are actually in
the right. In itself Dialectic has nothing to do but to show how aman
may defend himself against attacks of every kind, and especially
against dishonest attacks; and, in the same fashion, how he may
attack another man’s statement without contradicting himself, or
generally without being defeated. The discovery of objective truth
must be separated from the art of winning acceptance for
propositions ; for objective truth is an entirely different matter: it is
the business of sound judgment, reflection and experience, for
which there is no special art. Such, then, is the aim of Dialectic. It
has been defined as the Logic of appearance ; but the definition is a
wrong one, as in that case it could only be used to repel false
propositions. But even when a man has the right on his side, he
needs Dialectic in order to defend and maintain it; he must know
what the dishonest tricks are, in order to meet them; nay, he must
often make use of them himself, so as to beat the enemy with his
own weapons. Accordingly, in a dialectical contest we must put
objective truth aside, or, rather, we must regard it as an accidental
circumstance, and look only to the
 LOGIC AND DIALECTIC. Tt defence of our own position and
the refutation of our opponent’s. In following out the rules to this
end, no respect should be paid to objective truth, because we
usually do not know where the truth lies. AsI have said,a man often
does not himself know whether he is in the right or not ; he often
believes it, and is mistaken: both sides often believe it. Truth is in
the depths. At the beginning of a contest each man believes, as a
rule, that right is on his side; in the course of it, both become
doubtful, and the truth is not determined or confirmed until the
close. Dialectic, then, need have nothing to do with truth, as little as
the fencing master considers who is in the right when a dispute
leads to a duel. Thrust and parry is the whole business. Dialectic is
the art of intellectual fencing ; and it is only when we so regard it
that we can erect it into a branch of knowledge. For if we take
purely objective truth as our aim, we are reduced to mere Logic; if
we take the maintenance of false propositions, it is mere Sophistic;
and in either case it would have to be assumed that we were aware
of what was true and what was false ; and it is seldom that we have
any clear idea of the truth beforehand. The true conception of
Dialectic is, then, that which we have formed : it is the art of
intellectual fencing used for the purpose of getting the best of it in a
dispute ; and, although the name Fristic would be more suitable, it is
more correct to call it controversial Dialectic, Dialectica eristica.
Dialectic in this sense of the word has no other aim but to reduce to
a regular system and collect and
 12 THE ART OF CONTROVERSY. exhibit the arts which most
men employ when they observe, in a dispute, that truth is not on
their side, and still attempt to gain the day. Hence, it would be very
inexpedient to pay any regard to objective truth or its advancement
in a science of Dialectic; since this is not done in that original and
natural Dialectic innate in men, where they strive for nothing but
victory. The science of Dialectic,in one sense of the word, is mainly
concerned to tabulate and analyse dishonest stratagems, in order
that in a real debate they may be at once recognised and defeated.
It is for this very reason that Dialectic must admittedly take victory,
and not objective truth, for its aim and purpose. I am not aware that
anything has been done in this direction, although I have made
inquiries far and wide.! It is, therefore, an uncultivated soil. To
accomplish our purpose, we must draw from our experience ; we
must observe how in the debates which often arise in our
intercourse with our fellowmen this or that stratagem is employed by
one side or the other. By finding out the common elements in tricks
repeated in different forms, we shall be enabled to exhibit certain
general stratagems which may be advantageous, as well for our own
use, as for frustrating others if they use them. What follows is to be
regarded as a first attempt. 1 Diogenes Laertes tells us that among
the numerous writings on Rhetoric by Theophrastus, all of which
have been lost, there was one entitled “Aywnotixdy THs mept Tobs
epiotixods Adyous Oexpias. That would have been just what we
want.
 THE BASIS OF ALL DIALECTIC. is THE BASIS OF ALL
DIALECTIC. First of all, we must consider the essential nature of
every dispute : what it is that really takes place in it. Our opponent
has stated a thesis, or we ourselves, —it is all one. There are two
modes of refuting it, and two courses that we may pursue. IL. The
modes are (1) ad rem, (2) ad hominem or ex concessis. That is
tosay: We may show either that the proposition is not in accordance
with the nature of things, 7.e., with absolute, objective truth : or
that it is inconsistent with other statements or admissions of our
opponent, 7.e., with truth as it appears to him. The latter mode of
arguing a question produces only a relative conviction, and makes
no difference whatever to the objective truth of the matter. II. The
two courses that we may pursue are (1) the direct, and (2) the
indirect refutation. The direct attacks the reason for the thesis; the
indirect, its results. The direct refutation shows that the thesis is not
true ; the indirect, that it cannot be true. The direct course admits of
a twofold procedure. Either we may show that the reasons for the
statement are false (nego majorem, minorem); or we may admit the
reasons or premisses, but show that the statement does not follow
from them (nego consequentiam) ; that is, we attack the conclusion
or form of the syllogism. The direct refutation makes use either of
the diversion or of the instance. (a) The diversion.—We accept our
opponent’s pro 
 14 THE ART OF CONTROVERSY. position as true, and then
show what follows from it when we bring it into connection with
some other proposition acknowledged to be true. We use the two
propositions as the premisses of a syllogism giving a conclusion
which is manifestly false, as contradicting either the nature of
things,! or other statements of our opponent himself; that is to say,
the conclusion is false either ad rem or ad hominem.2 Consequently,
our opponent's proposition must have been false; for, while true
premisses can give only a true conclusion, false premisses need not
always give a false one. (b) The «stance, or the example to the
contrary. —This consists in refuting the general proposition by direct
reference to particular cases which are included in it in the way in
which it is stated, but to which it does not apply, and by which it is
therefore shown to be necessarily false. Such is the framework or
skeleton of all forms of disputation ; for to this every kind of
controversy may be ultimately reduced. The whole of a controversy
may, however, actually proceed in the manner described, or only
appear to do so ; and it may be supported by genuine or spurious
arguments. It is just because it is not easy to make out the truth in
regard to this matter, that debates are so long and so obstinate. Nor
can we, in ordering the argument, separate actual from apparent
truth, since even the disputants are not certain about it beforehand.
Therefore I 1 Tf it is in direct contradiction with a perfectly
undoubted truth, we have reduced our opponent’s position ad
absurdum. 2 Socrates, in Hippia Maj. et alias.
 STRATAGEMS. 15 shall describe the various tricks or
stratagems without regard to questions of objective truth or falsity ;
for that is a matter on which we have no assurance, and which
cannot be determined previously. Moreover, in every disputation or
argument on any subject we must agree about something; and by
this, as a principle, we must be willing to judge the matter in
question. We cannot argue with those who deny principles: Contra
negantem principia non est disputandum. STRATAGEMS. iz The
Extension.—This consists in carrying your opponent’s proposition
beyond its natural limits; in giving it as general a signification and as
wide a sense as possible, so as to exaggerate it ; and, on the other
hand, in giving your own proposition as restricted a sense and as
narrow limits as you can, because the more general a statement
becomes, the more numerous are the objections to which it is open.
The defence consists in an accurate statement of the point or
essential question at issue. Example 1.—I asserted that the English
were supreme in drama. My opponent attempted to give an instance
to the contrary, and replied that it was a wellknown fact that in
music, and consequently in opera, they could do nothing at all. I
repelled the attack by reminding him that music was not included in
dramatic art, which covered tragedy and comedy alone. This he
knew very well. What he had done was to try
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