Bar Exam-type questions Flashcards
What is summary judgment? Explain the procedural steps that both the Plaintiff and Second Defendant would have to take in relation to such an application.
Summary judgment is a procedure that allows a judge to determine the outcome of a proceeding without it
having proceeded to full trial, where a party has ‘no real prospect of success’ CPA Pt 4.4. If the plaintiff wished to make such an application, they would be required to file a summons and an affidavit in support, verifying the basis on which the application is made and deposing to their belief as to lack of prospects (r22.04). The defence may then show cause by filing an affidavit in response (r22.05). The court may cross examine any maker of an affidavit (r22.07), and may make orders with respect to the application under r22.08.
Explain the obligation and purpose of discovery in civil proceedings.
In accordance with Order 29, parties to a civil proceeding must discover, ie list and produce on request all documents in their possession which support or damage own case or support or damage another party’s case, unless reasonable belief other party already has the document. Aim is fairness and forensic convenience by all parties understanding what documentary evidence is available to support/harm each party’s case and to avoid evidentiary ambush at trial.
Explain the procedural steps and requirements associated with the preparation and contents of Professor Heinz’s report prior to trial.
Plaintiff needs to comply with O44 in order to be able to tender report at trial. This means that Heinz needed
to be given a copy of the code of conduct for expert witnesses before he prepared report. He needed to have read it and in his report stated that he read it and agrees to be bound by it. His report will also need to state name, address, qualifications, facts/assumptions he took into account, any literature he relied on, any issues outside his area of expertise, any tests he conducted, etc. In order to be able to tender the report at trial, P needs to serve copy of the report (and give copy to court) on each party at least 30 days before trial. If P doesn’t comply with above, cannot lead evidence in examination in chief from expert other than with leave of the court or consent of the other parties – rule 44.05.
What is a ‘proper basis certification’? Explain how this requirement would apply to the Plaintiff’s
legal representatives in this proceeding and what the potential consequences could be (if any) if they fail to
comply with that requirement.
Proper basis certification is the filing of a certificate made by a lawyer with the first substantive document certifies all allegation, non-admissions and denials have a proper basis based on the factual and legal material available at the time (reasonable belief as to the truthfulness) (s 42). P’s lawyers must file it with the statement of claim in relation to each allegation. Failure to certify does not invalidate the proceeding or prevent its commencement (s 45 CPA) but may be taken into account by court when making orders including as to costs in the proceeding (s46 CPA)
