7 Preparation & Part 36

Question 1

What is the order of trial?

Answer 1

1. Opening speech C
2. C’s case - ⇾ D’s counsel may cross-examine witness (leading Qs) ⇾ C’s counsel may re-examine witness on matters covered in cross-examination (no leading Qs)
3. D’s case C’s counsel can cross-examine witness ⇾ D’s counsel may re- examine on matters covered in cross-examination
4. closing speeches D, then C
5. Judgment

Question 2

From when is judgment effective?

Answer 2

judgment effective from day given, not served

Question 3

From when does interest run?

Answer 3

interest begins to run from date of judgment 📗 40.8

Question 4

REJECTING a P36 consequences - approach to question

Answer 4

1. Who has made the offer?
2. Which part of CPR 36.17, if any, applies?
3. Who does the court wish to penalise (who has unreasonably protracted proceedings)?
4. How, and for what period?

Question 5

if both parties make P36 offers which are rejected & the amount awarded is between 2 offers - what happens?

Answer 5

neither offer has any effect ⇾ apply normal rules under CPR 44

Question 6

if you are asked as to the consequence of a rejected P36 offer, what should you discuss?

Answer 6

explain 4 possible outcomes of P36 ⇾ ‘accept’ & the 3 possible outcomes of rejecting

Question 7

2 purposes of a court order after settlement

Answer 7

1. ensures any existing proceedings brought to an end

2. assists in enforcing agreement reached

Question 8

If claim is settled, what are the means in which parties can deal with existing proceedings?

Answer 8

1. STAY - suspended (e.g. after P36 offer)
2. DISMISSAL: no automatic cost consequences - decided between parties
3. DISCONTINUANCE
4. CONSENT ORDER

Question 9

what are the 2 forms in which a consent order can be?

Answer 9

a. order based on a contract ⇾ consent order is evidence of contract ⇾ court rarely interferes
b. order isn’t contract but simply parties agreeing terms of settlement ⇾ may be altered by court

Question 10

when would a Tomlin order be used?

Answer 10

generally when:

a. Parties wish for key settlement terms to be confidential; and/or
b. Agreed settlement terms go beyond what court would generally order

Question 11

Tomlin Order - what should be contained in the body?

Answer 11

1. Payment of money out of court (e.g. any sums paid into court following earlier, successful, Security for Costs application), or
2. Payment and/or assessment of costs
   must be contained in the main body of the order require action by the court & must therefore be in ‘public part’ of order

Question 12

Tomlin Order - what should be contained in the schedule?

Answer 12

terms of agreement (which are confidential)

Question 13

Settlement agreement breached - there is no CO

Answer 13

proceedings for breach of contract ⇾ usually summary judgment ⇾ enforcement

Question 14

Settlement agreement breached - agreement embodied on face of CO

Answer 14

non-defaulting party can proceed to enforcement immediately

Question 15

Settlement agreement breached - in TO

Answer 15

order for breach of terms of schedule must be obtained before enforcement

Question 16

What are the possible procedures for assessment of costs?

Answer 16

a. summary assessment of costs
b. detailed assessment of costs
c. provisional assessment of costs

Question 17

What is the procedure in a detailed assessment of costs?

Answer 17

1. receiving party serves notice of commencement & copy of bill of costs on paying party
   • bill of costs = doc itemising all work carried out
2. points of dispute of any item in BOC should be served on RP by PP ⋜21d of service of NOC
3. receiving party may serve reply to points of dispute within 21d
4. receiving party should file request for DA hearing ⇾ must be commenced within 3m of judgment 47.7
5. following DA hearing ⇾ final costs certificate issued ⇾ includes order that costs be paid

Question 18

What are some of the effects of litigation on a client’s business

Answer 18

PLATE!
Publicity
Losing (possibility of)
Aggravation (frustration)
Time
Expenditure (cost)