6): Preparation of a Case for Trial, the Trial and Post-Trial Steps Flashcards
How can a witness be summoned to court?
through a witness summons
What is a witness summons?
doc issued by court requiring person to appear before court + give evidence/produce docs
may be necessary if witness will not attend voluntarily
will be served by the court unless issuing party says otherwise
must be accompanied by offer to pay for witness’s travel expenses to and from court + compensation for working time lost
failure of a witness to comply may be contempt of court, imprisonment or fine
What happens in the fast and multi track claims after disclosure and exchange of written evidence stages?
court will send the parties a pre-trial checklist
AKA listing questionnaire
parties complete + return this (usually within 8 weeks max.) before trial date
What is the purpose of the pre-trial checklist?
enables the court to decide if:
any further directions are needed before trial + whether it can set a date for trial + give directions for trial
whether the matter requires listing for pre-trial review to check parties have complied with all order/directions
What is the purpose of a trial bundle?
places before the court:
all relevant material
assists advocates with good preparation of their cases
assist judge with pre-trial reading
assist trial hearing to proceed smoothly + expeditiously
Who prepares the trial bundle and by when?
claimant’s lawyer
filed no earlier than 7 days before trial but not later than 3 days before trial
What is included in the trial bundle?
claim form + statements of case
case summary + chronology
requests for further info + responses to the requests
any witness statements being relied upon
any witness summaries
any notices of intention to rely on hearsay evidence
any notices to rely on evidence not contained in a witness statement/affidavit/expert’s report (oral) or is hearsay evidence
medical reports + responses
expert’s reports + responses
order for directions as to conduct of trial
any other necessary docs
What is the procedure for trial and who goes first?
C/D side makes opening speech
C/D gives evidence
examination-in-chief by C/D (open + non-leading qs)
cross-examination by D/C (leading qs allowed)
re-examination by C/D (open + non-leading qs only)
defendant’s closing speech
claimant’s closing speech
judgment given + any order made
What elements will judgment assess?
liability
quantum
interest
costs
What happens if the claimant or defendant wins?
claimant: matter proceeds to enforcement, defendant pays interests + costs (if awarded)
defendant: proceedings end, claimant pays costs (if awarded)
What is meant by an appeal?
appellant seeks to change a judgment/order of a lower court by having it reconsidered by a higher one
party has 21 days to appeal against a county/high court decision
party has 28 days to apply for leave to appeal from COA to the Supreme Court
Is there an automatic right to appeal?
no, permission is required
On a first appeal, when might permission to appeal be granted?
only where the court considers:
that the appeal would have a real prospect of success OR
there is some other compelling reason why the appeal should be heard
What might a court do in response to an application to appeal (first appeals)?
strike out whole/part of an appeal notice
set aside permission to appeal in whole/part
impose/vary conditions on which an appeal may be brought
What is a second appeal and when might it be granted?
app for permission to appeal a decision of the high/county court that was itself made on appeal
Only COA can give permission for a 2nd appeal if:
appeal would raise an important point of principle/practice (which hasn’t yet been established) OR
there is some other compelling reason to hear it
What are the grounds for an appeal in the appeal court?
appeal court will allow an appeal where the decision of one of the lower courts was either:
wrong (in law, fact or exercise of discretion)
unjust because of serious procedural or other irregularity
What is an order to obtain information?
claimant applies to court to obtain info on debtor’s finances
enables appropriate enforcement of money judgments against defendant
debtor must attend court and be questioned under oath about their finances/company’s finances
What methods of enforcement are available to a judgment creditor?
taking control of goods
charging order
third party debt order
attachment of earnings orders
What is meant by an order to take control of goods?
seizure + sale of debtor’s goods
cannot force entry to private residence but can to business premises
cannot seize goods used for job, trade or profession
cannot seize household items of debtor + their family
must apply for writ of control (high court) OR warrant of control (County court) depending on judgment value threshold
What is meant by ac charging order?
charge on debtor’s land and/or securities
3 stages:
app for interim charging order
app for final charging order
order for sale
only effective if debtor is sole owner of property + there are no prior charge holder secured against the property
How should a charging order be made against land?
charging order should be registered at:
Land charges department (unregistered land)
HMLR (registered land)
What is meant by a third party debt order?
order directing a 3rd party who holds/owes money to debtor to pay it directly to the creditor
not possible if money is held in joint account + the party is not a joint judgement debtor
order only applies to debts within England + Wales
What is an attachment of earnings order?
order requiring debtor’s employer to make deductions from their salary and pay them to creditor
does not apply to self-employed debtors
