10 - Trial, Appeals, and Enforcement Flashcards
What are the main CPR rules supporting Orders Following Settlement?
- CPR 40 and PD 40B.
What is the purpose and effect of a consent order in settled matters, and what types exist?
Purpose and Effect: A consent order records the settlement terms agreed upon by both parties, serving as a ‘normal’ court order but without the need for the court to hear arguments (under CPR 40.6 / 40B PD 3).
Types of Consent Orders:
- Consent Order Based on Contract: Acts as evidence of the contract between the parties and is rarely interfered with by the court. Often seen in ‘Tomlin Orders’.
- Consent Order Not Based on Contract: Not a contract itself but an agreed settlement in the claim. This order may be varied or altered by the court.
Defence of Estoppel: Once entered, a consent order may provide a defence of estoppel against fresh proceedings on the agreed matters, depending on the exact wording in the agreement.
What is a Tomlin Order, and when is it used?
Definition: A Tomlin Order is a type of consent order made up of two parts:
The first part is public, and the second part is confidential, containing the detailed terms of the agreement.
Usage: A Tomlin Order is generally used when:
- The parties wish for key settlement terms to be confidential; and/or
- The agreed settlement terms extend beyond those that the court would typically order as part of the proceedings e.g., the power to order that the Claimant must provide goods on certain terms to the defendant.
- This need for additional terms is why a Tomlin Order includes a schedule, which is not generally present in a standard consent order.
What is the structure of a Tomlin Order, and what does each part contain?
Part 1 – ‘Order’:
Public and looks like any other consent order.
Contains actions enforceable by the court, such as:
- Stay of proceedings
- Permission to apply
- Detailed assessment of costs, if applicable
Part 2 – ‘Schedule’:
- Generally confidential and contains the specific terms of the agreement.
- Allows the parties to include provisions extending beyond the dispute’s limits, which are enforceable only with a further court order.
Important Note: Any direction for the payment of money out of court or the payment/assessment of costs must be in Part 1 (main body of the order) as required by 40B PD 3.5, since these actions involve court intervention and therefore must be included in the public part of the order, not in the confidential schedule.
What is the process for putting a consent or Tomlin Order in place?
Although consent orders and Tomlin Orders reflect the agreement of the parties, they still need the court’s approval.
Applying to the Court:
- Once the parties have agreed on the content of the order, they will need to apply to the court to have the order made.
- If the court does make the order, it takes effect like any other court order.
When Settlement is Reached During a Stay:
- Sometimes, settlement is reached while the claim has been stayed. In this case, the application for the consent or Tomlin Order is treated as an application also to have the stay lifted.
How should a settlement be recorded before proceedings are issued?
It is preferable, and common, for parties to resolve their dispute without issuing proceedings. If this happens, there is no need for a consent order or Tomlin Order, as there are no proceedings to dispose of.
Settlement Agreement:
- The parties will record their agreement in a settlement agreement, which effectively serves as a form of contract.
Careful Drafting:
- A settlement agreement needs to be carefully drafted to ensure it reflects the parties’ agreement.
- In particular, if one party is giving up the right to bring proceedings regarding alleged wrongdoing by the other party, great care must be given to define the scope of the dispute being settled (as there are no statements of case to define this scope).
How can consent orders be used for interim applications in court proceedings?
Settlement agreements can apply to interim applications, not just the whole dispute.
For example, if the claimant requires an extension of time for exchanging witness statements, the parties can agree to an extension of up to 28 days without court application (per CPR 3.8(4)).
Longer Extensions: If the claimant requires an extension beyond 28 days, a court application is usually necessary, even if the defendant agrees.
In this situation, the claimant would:
- Draft a consent order recording the agreed extension (e.g., 35 days) and have both parties indicate their agreement.
- File the consent order at court, ideally alongside the application notice, or later if needed.
- Request the court to consider the application on paper, without a hearing.
Court Approval:
- The court is not obliged to approve such a consent order, as it is a case management decision.
- However, the fact that both parties are in agreement increases the likelihood of approval.
Provide a summary of Orders Following Settlement.
- Judgments and orders can be made after settlement by consent and at an interim stage before trial.
- Consent orders are signed by all parties and sealed by the court. They can be in the form of a 2-part Tomlin Order or a ‘regular’ order.
- A Tomlin Order has the advantage of allowing some terms of settlement to be kept confidential by inclusion in a confidential schedule to the main order.
- A Tomlin Order also allows for greater flexibility in terms of settlement terms than a Consent Order.
- If a party wants to enforce the terms in a schedule to a Tomlin Order, a further order is required.
- Consent orders can also be used to indicate agreement in relation to an interim application to court.
What are the relevant CPR rules for preparation for trial?
The main CPR which support the content of this element are:
- CPR 32.18-19 in relation to notices to admit facts / documents
- CPR 28.5-28.6 (in relation to preparation for trial of a fast or intermediate track claim)
- CPR 29.6-29.8 (in relation to preparation for trial of a multi-track claim)
- CPR 39.5 and 32 PD 27 in relation to trial bundles
What steps must parties take to ensure they are fully ready for trial?
To be fully prepared for trial, parties must take certain steps to ensure the case is ready, which may include the following:
- Completing a pre-trial checklist/listing questionnaire
- Attending a pre-trial review if scheduled
- Preparing a brief to counsel
- Drafting skeleton arguments
- Providing a case summary
- Compiling a trial bundle
- Creating a reading list for trial preparation
- Issuing any necessary witness summons
- Preparing authorities to be referenced in court
- Serving a notice to admit facts to streamline trial proceedings
What is the purpose of the pre-trial checklist?
The pre-trial checklist (also known as the listing questionnaire, Form N170) is required in fast track, intermediate track, and multi-track cases to:
- Provide the court with an opportunity to check that all prior case management directions have been followed and confirm that the case is ready for trial
- Allow the court to give any additional necessary directions
- Confirm or set a date for the trial if one has not already been fixed
What details must parties confirm or provide in the pre-trial checklist?
The pre-trial checklist requires parties to:
- Confirm compliance with previous directions, detailing any outstanding directions and specifying when these will be completed
- Specify any further directions needed to prepare the case for trial, attaching an application form and draft order for those directions
- Confirm whether expert evidence has been authorised for trial (in writing or orally). If not, an application should now be made for such an order
- Provide details of expert witnesses, whether they have met to discuss their reports, and whether their reports have been agreed
- Give dates when experts will be unavailable during the trial period
- Provide details of other witnesses, their availability, and any special requirements they may have
- Indicate who will present the case at trial and their availability within the trial period
- Estimate the trial length, including cross-examination and closing arguments, and attach a proposed timetable for the trial (ideally agreed between the parties)
The checklist is sent to each party at least 14 days before the due date for filing, which will be at least eight weeks before the trial date or the start of the trial period. Parties are encouraged to exchange their pre-trial checklists before filing to ensure the court receives consistent and complete information.
What directions may the court provide after the pre-trial checklist is filed to prepare the case for trial?
After the pre-trial checklist is filed, the court may issue further directions to prepare the case for trial, either with or without a hearing. This hearing is usually the pre-trial review (PTR).
Directions the court must provide for listing (PD29) include:
- The court will fix the trial date (or confirm the date already given).
- The court will give a time estimate for the trial.
- The court will fix the place of the trial.
In addition to these mandatory directions, the court may provide further instructions on:
- Evidence, particularly the evidence of experts or any special arrangements required for the trial.
- A trial timetable, including key dates and scheduling.
- The preparation of trial bundles, ensuring that all relevant documents are ready.
- Any other matters required to ensure the case is prepared for trial.
The purpose of the PTR is to check that the parties have complied with all previous orders and directions, and to issue any further directions necessary for the smooth conduct of the trial.
What is the purpose of a trial bundle and how should it be prepared?
The trial bundle ensures that all relevant material is before the court for a smooth trial process. It helps advocates prepare and allows the judge to review pre-trial documents.
To prepare:
- Place all documents likely to be referred to at trial in paginated and indexed files (CPR 39 and 32 PD 27).
- The claimant must file the trial bundle with the court 3 to 7 days before the trial.
- The bundle’s contents should be agreed, and a summary of disputed points should be included if necessary.
- Provide identical bundles to all parties and a separate set for witnesses.
A well-prepared trial bundle is essential to avoid delays, penalties, and wasting court time.
What are the responsibilities for filing a trial bundle and the consequences of poor preparation?
The claimant must file the trial bundle with the court no more than seven days and no less than three days before trial begins The bundle should include all documents to be referred to and be paginated and indexed.
Trial is an “event” and so when counting time (CPR 2.8) this date and the day on which the period begins must be excluded. Days means clear days. The last date on which the trial bundles can be filed is less than 5 days so Saturday and Sunday must also be excluded (CPR 2.8(4)).
If there are disagreements, include a summary of disputed points. Also, provide identical bundles to each party and a separate set for witnesses.
Failure to prepare properly can lead to penalties, delays, and frustration for the judge, ultimately affecting the progress of the trial.
What must be included in the trial bundle?
Unless the court orders otherwise, a trial bundle should include a copy of:
- Claim form and all statements of case;
- Case summary and/or chronology where appropriate;
- Requests for further information and responses to these;
- All witness statements to be relied on as evidence;
- Any witness summaries;
- Any hearsay notices;
- Any notices of intention to rely on evidence which is not;
a. Contained in a witness statement, affidavit or expert’s report
b. Being given orally at trial
c. Hearsay evidence; - Any medical reports with responses to them;
- Any experts’ reports, with responses to them;
- Any order giving directions for the conduct of the trial; and
- Any other necessary documents.
What is included in the reading list for High Court cases in the Chancery and King’s Bench Divisions?
In High Court cases within the Chancery and King’s Bench Divisions, the claimant must lodge a reading list with the trial bundles. The reading list should:
- Estimate the time the judge needs to read and understand the case and relevant authorities.
- Include an estimate of the hearing length.
- Be signed by all advocates.
What is the purpose and content of a skeleton argument in High Court trials?
A skeleton argument is a concise summary of the submissions to be made in High Court trials, including the authorities relied upon. It is usually prepared by counsel. Key points include:
- Counsel prepares the skeleton argument.
- The counsel’s clerk ensures it is lodged at court and exchanged with the other side.
What are the requirements for submitting authorities in High Court cases before a hearing?
In High Court cases, a list of authorities must be submitted to the court by 5pm the day before the hearing. This ensures that the relevant law reports are available in court for the hearing.
Key points include:
- The list of authorities must be submitted to the court.
- The list should be agreed and exchanged with the other side
What is the purpose and content of a case summary in pre-trial preparation?
A case summary is a short, non-contentious summary of the issues in the case, typically agreed by the parties. It helps to provide a clear overview of the case for the trial.
What should happen if a case settles before trial, between the listing stage and trial?
If a case settles before trial, between the listing stage and trial, the parties must:
- Immediately notify the listing officer for the trial court.
- This enables the court to reallocate trial time to other cases.
- Failure to notify may result in costs penalties.
What is the purpose of a notice to admit facts and how does it work?
A notice to admit facts is used to formally ask the other party to admit a factual point that is in issue in the case. The key points include:
- The purpose is to avoid calling evidence at trial if the other party agrees to admit the fact.
- To prompt the other party to admit the fact, evidence or dialogue supporting the point should have already been served.
- If the other party does not admit the fact, the evidence must be called at trial, and the judge will decide if the fact is correct.
- If the judge agrees with the fact, the party that refused to admit it may face cost consequences and be treated less favourably when the court exercises its discretion on costs at the end of the case.
How do notices to admit documents work and what is their purpose?
A notice to admit documents follows similar principles to notices to admit facts.
The key points include:
- A party is deemed to admit the authenticity of documents disclosed to them unless they serve notice stating they wish the document to be proven at trial.
- This is governed by CPR 31 and aims to avoid the need to prove the authenticity of documents in trial if there is no dispute.
What is the process for briefing counsel for trial and what is included in the brief?
When briefing counsel for trial, the key points include:
- Counsel should receive instructions and a full set of trial documents in good time.
- In complex multi-track cases, counsel is usually involved throughout, so no detailed brief is required.
- In smaller, less complex cases, the brief must summarise the case to date to enable counsel to prepare fully for the trial.
- The brief fee is agreed with counsel’s clerk and covers both the preparation for and the first day of the trial.
- In larger cases, there may be staged payments and written agreements outlining the specifics (e.g. weekend working or closing submissions).
- If the case settles after the brief is delivered, the brief fee (or any staged payments) is non-refundable unless agreed otherwise.
- A case often settles just before the brief is delivered.
- For subsequent days of the trial, the fee is called a ‘refresher’, which is an agreed fee per day for days after the first trial day.
How can reluctant witnesses or expert witnesses be compelled to attend trial?
To secure the attendance of reluctant witnesses or expert witnesses with other commitments (e.g., NHS consultants), the following steps can be taken:
A witness summons in Form N20 (CPR 34.2) can be issued and served on the witness.
The summons can require the witness to:
- Attend trial to give oral evidence,
- Produce specified documents, or
- Do both.
Provide a summary of what is necessary in preparation for trial.
- A pre-trial checklist will need to be completed (in cases allocated to the fast track, intermediate track and multi-track), allowing the court to check directions have complied with and to take any necessary steps.
- A pre-trial review hearing may also take place.
- The claimant prepares the trial bundle – a paginated bundle of all the key documents. Identical copies are provided for each party, the court and a further set for the use of witnesses.
- It may also be necessary for the parties to prepare a reading list, skeleton arguments, list of authorities, case summaries, notices to admit facts, brief to counsel and witness summons’.
What are the CPR rules which support trial in civil litigation?
- CPR 40, in relation to judgments and orders.
- The principles of etiquette and typical order of events at trial are not set out in the CPR.
What is the court room etiquette at a civil trial?
- All parties should dress formally.
- In some contexts, legal representative should stand when speaking and sit when not speaking.
- Address the court indirectly. Do not refer to the judge as “you”, rather “my honour”.
- An opponents representative is reffered to as ‘my learned friend’ if a barrister, or my ‘friend’ if a solicitor.
- When a judge either enters or leaves the courtroom, everybody must stand, and wait for the judge to sit/leave the room before sitting down, and bow to the judge when the judge bows which will be upon entering or before leaving.
- If speaking first in court, the legal representative should introduce their opponent(s), by name, and state the party they represent, introduce themselves by identifying the party they represent, without stating their name.
- Advocate should say “it is submitted” or “I submit” when speaking.
- A legal representative should not approach the bench without permission)
What is a civil trial?
Where substantive issues between the parties are decided by the court, having heard all the witnesses give their evidence.
The order made at trial will be called a judgment or final order.
What is the usual order of events during a civil trial?
- Claimant’s opening speech.
- Claimant’s case - i.e., the claimant’s evidence-in-chief.
- Defendant’s case - i.e., the defendant’s evidence-in-chief. Within this the defendant cross-examines the witness, who is thereafter re-examined by the claimant.
- Closing speeches.
- Judgments and final orders.
What happens during the claimant’s opening speech during a civil trial?
- Counsel for claimant to describe the nature of the case, and identify issues to be tried by reference to the statements of case, statements of issue, and key documents.
The judge will have read the key documents in the trial bundle, and in smaller cases might dispense with the need for opening speeches.
What is the process of presenting and challenging evidence for the claimant in court?
The process of presenting and challenging evidence on behalf of the claimant typically involves:
Calling evidence for the claimant, which may include:
- Witnesses of fact and experts,
- Real evidence, and
- Documentary evidence.
Evidence-in-chief: The witness statement stands as the evidence-in-chief of the witness (unless the court orders otherwise) (CPR 32.5(2)). The witness takes the stand to confirm their evidence.
Cross-examination by the defendant’s counsel:
- Conducted using leading questions (questions suggesting a particular answer, e.g., “so you breached the contract by failing to deliver the goods on time?”).
- The aim is to challenge weaknesses in the evidence or the credibility of the witness.
Re-examination by claimant’s counsel:
- Limited to matters covered in cross-examination.
- Non-leading questions are used (e.g., “when were the goods delivered?”).
- Leading questions are not permitted during re-examination.
What happens when the defendant makes their case at a civil trial?
- In larger cases there may be an opening speech.
- Defence call its evidence in the same way as the claimant.
- The witness statement of each witness will generally stand as the evidence-in-chief of that witness.
- The claimant’s counsel will then have the opportunity to re-examine the witness.
- The defendant’s counsel may then re-examine on matters covered in cross-examination.
What happens during closing speeches at a civil trial?
- Defence will make a closing speech. Here, counsel for the defendant will generally refer to the evidence adduced, highlight any inferences to be drawn from that evidence, and how this supports the defence.
- The claimant’s counsel will then make a closing speech, referring to the claimant’s evidence, inferences to be drawn from this, and how this supports the claimant’s case.
What is a judgment/final order, and when are they made during a civil trial?
- A judgment or any other ‘final’ order is an order which ends the claim. E.g., a judgment might be given in favour of the claimant ordering the defendant to pay an amount of money in respect of damages claimed.
- A judgment / order will also make a provision for costs, so the successful claimant having been awaded damages from the defendant would expect the judgment to award that the defendant pays the claimant’s costs of the action as well.
- Judgments and final orders are made after the trial or final hearing of a matter, or in accordance with provision made in the CPR for earlier judgments, for example, default judgment, and summary judgment.
What types of order (other than a final order) might a court make during a civil trial?
Interim orders are orders made at any stage in a claim before trial that do not bring the claim to a final conclusion.
Example: An interim order might grant permission to amend the statements of case, include an award for interim costs, and allow the claim to proceed.
In some instances, such as after a summary assessment of costs at an interim hearing, there may be immediate payment requirements under the interim order, and rules regarding the order’s effectiveness and payment timing apply.
If the case settles before trial, a consent order is needed, which:
- Must be court-approved to officially notify the court that the claim has ended,
- May assist in enforcing the settlement agreement reached.
What are the procedures for handing down judgment after trial in complex cases?
Judgment Timing:
- In simple cases, the judge may give judgment immediately following trial.
- In complex cases, judgment is often reserved, meaning the judge will deliver it at a later date.
Input from Legal Representatives: The judge may invite the parties’ legal representatives to provide views on how the judgment should be handed down.
Draft Judgment Circulation: The judge will typically circulate the draft judgment in advance (by 4pm on the second working day before handing down) to allow:
- Preparation of costs submissions,
- Identification of obvious errors (e.g., typos or incorrect references).
The draft may be circulated by email to the parties’ representatives.
Confidentiality of Draft Judgment: There are restrictions on the draft, which is not a public document until it is formally handed down.
What is a disposal hearing, and when may the court order for this?
- In some cases, it might be appropriate to hold a split trial, where the court decides to firstly hold a trial to decide who is to blame them, assuming the defendant is found liable, some time later there will be a further trial or hearing to assess the level of damages.
- The court usually allows this in cases where the evidence on liability is different to the evidence on quantum, and it will further the overriding objective to hold two separate hearings.
What are the key steps in drawing up a judgment or order?
Definition: ‘Drawing up’ means creating a formal document for the judgment/order, to be sealed by the court.
Responsibility for Drawing Up: The court usually draws up the order, unless:
- A party is ordered to draw it up,
- A party agrees (with court permission) to draw it up,
- The court dispenses with the need, or
- It is a consent order (which is drawn up by the parties).
Filing Deadline: If a party is responsible, they must file the drawn-up order within 7 days. Sufficient copies must be filed for service on all parties.
Failure to Draw Up: If the responsible party fails to meet the deadline, any other party may draw up the order.
Approval and Involvement: The court can review and approve contents, with other parties involved in agreeing the order’s contents where needed.
What are the key considerations for serving a judgment or order?
Court’s Role in Service: Once sealed, the court usually serves the order on all parties, unless directed otherwise.
Alternative Service Responsibility: The court may direct or agree that a party is responsible for service of the order.
Specialist Divisions: Rules on drawing up and service vary across specialist divisions (e.g., Chancery and commercial courts). Always check the specialist court guides if handling claims outside the King’s Bench Division.
