Advocacy 4 - Dispute Resolution Flashcards
Tips
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May be useful to make chronology of events. Highlighting what has been done and what procedural steps need to be taken next.
Recognise inconsistencies and gaps
Anticipate and defuse opponents attacks
Clear structure. Brief introduction saying what you are going to introduce and then signpost throughout.
General structure
Grounds for the application / objection
In relation to each ground :
list relevant issues
apply relevant facts
summarise / draw conclusions as appropriate
Prepare a brief script. Use general headings and pointers of the legal principle. Small words from there to jog the memory.
Preparing an application
(in legal practice)
Try to agree as much as possible with other side in advance.
Make sure all relevant witness statements are served before the hearing.
Make sure that you have mastered the facts of the case.
Judge should have a copy of the court Gile.
Make sure read and flagged relevant passages in CPR and practice directions.
Prepare brief notes.
Have very clear idea of order you want to make.
Work out in advance any relevant interest calculation
Consider the prospect of an appeal should application be unsuccessful.
Conducting the application
Party making application will being hearing whether claimant or defendant.
(1)- Formally introduce yourself, your opponent, and the application and identify any relevant document on court file which you intend to refer.
Judge willl not have copies of correspondence between parties. Only refer if it is exhibited in a witness statement.
Then ask Judge is a brief summary of the facts would assist and proceed accordingly.
(2) - concisely identify the issues (legal and factual) for the court to deice and by reference to the documents highlight the relevant facts.
Refer to pargaprahs and summarise their effect. If Judge has read documents can be more concise.
Anticipate and deal with all disputed matters revealed by opponent’s evidence.
(3) Succinctly refer to the relevant law and or procedure - If appropriate explain simply which provision of CPR relying on and apply facts to the case.
(4) conclude submissions for the order sought - Emphasies best points, suggest second best if think order won’t be granted.
Conclude ‘Judge, unless I can help you further, that concludes my application’.
Respondent’s case
(1) identify any relevant document on court file to which intend to refer
‘Judge in opposing this application I will be relying on the same documents as my friend, but in addition, the defence.
(2) By reference to the documents, concisely identify and deal with issues (legal and factual)
Identify what you want the court to do and why.
Take judge to relevant paragraphs in the statements of case and witness statements which support your arguments.
Present a positive case, do not just reply. However do deal with applicants case.
(3)
Succinctly counter the applicants arguments on the relevant law and/or procedure
Reply to the legal points raised by the applicant. Distinguish, if possible, the applicants authorities and introduce any you rely on.
(4) - conclude submissions against the order sought - briefly emphasis why the order requested by the applicant should not be made (or if it should be modified0.
Stress effects of making the order on the claim.
‘Judge unless I can assist you further, those are the grounds upon which I oppose the order sought’.
Applicant’s final word -
Deal with points made. Can be done very briefly if it is a point which has already been dealt with.
If new, point to evidence or document that supports assertions.
Closing the case
judge gives reasoned judgement.
If appropriate judge will give directions for further conduct of case. Ask for directions if necessary.
Party who won usually ask for costs, loser given opportunity to reply.
Be prepared to make submission on costs order.
Appeals - at end of hearing, judge may ask parties if they wish to appeal judge’s decision.
