14. Trial Flashcards
What is the usual order used to record settlement and what is the consequence of not using an order?
Tomlin Order.
If no order is used, there is no enforceable obligation regarding (i.e. automatic right to) payment.
What are the two parts of a Tomlin Order?
- The order, which confirms the parties have agreed settlement and that the case is stayed pending the settlement terms being carried out, and
- A schedule confirming the amount to be paid, by whom, and by what date
What is the limitation period to enforce a Tomlin Order?
6 years - since it is basically a contract…
What are the parties required to file and serve ahead of the pre-trial hearing?
A case summary (agreed where possible) together with a list of issues
What three things should the case summary clearly specify?
- Issues of fact
- What is in dispute
- Synopsis of the evidence
How many copies of a witness summons must a party give to the court, per witness, if the court is serving the witness?
Two summonses per witness. One for service, and one for the court
What is the effect of conduct money not being included in the summons?
The summons is not effective
For a witness summons to be effective, how long before trial must it be served on the witness?
7 days
What information must be contained within a trial bundle?
All the documents likely to be referred to at trial should be placed into paginated and indexed files.
- If there are any areas of disagreement, a summary of the points in dispute should be included.
In what two circumstances will court permission be required to discontinue a case?
- Court has granted an interim injunction
- Claimant has received an interim payment (unless paying party consents)
From a cost perspective, what is the consequence for the claimant of discontinuing a case?
They are liable to pay the defendant’s costs up until that point
What is the procedure to complete, exchange, and file the Pre-trial Checklist?
send to opponent at least 14 days before trial
* filing date is set by court and will be at least 8 weeks before trial date.
What are the consequences where both parties fail to file their Pre-trial checklists?
court will likely grant an unless order.
* failure to comply may result in the case being struck out
What purpose is the pre-trial checklist intended to serve?
Provides the court with another opportunity to:
* check that the case management directions previously given have been complied with and that the case is ready for trial;
* give any further necessary directions; and
* fix a date for trial (or confirm a date that has already been fixed).
* Asks parties details about measures/witnesses and their availability/estimate length of trial, etc.
* effectively intended to create a timetable for trial.
What is the standard procedure for trial?
- Claimant’s opening speech
- Claimant’s case (examination in-chief, cross-examination, re-examanitation).
- Defence’s case
- Defence’s closing speech
- Claimant’s closing speech
