Disputes, Evidence and Trial Flashcards
Key points about evidence in civil litigation?
- if you want to admit evidence it must be relevant
- Main from of evidence is witness statements and exhibits
- other form is expert evidence
- witness statement must be fact, NOT opinion
- Perceived facts - what witness perceives to be true, but is more likely to be opinion. Opinion based on what they believe to be true.
- Perceived facts - can be admissible
- Expert evidence - IS opinion evidence, BUT must be relevant
GENERAL INFO ABOUT CIVIL CASES
- General rule all claims start in County CT
- Over £100k has choice CC or HC
- Over £100K CPR states should ONLY be sent to HC if:
- Value of claim and amount in dispute large, well above £100k
- facts issues/remedies - complex
- outcome import to public
1 or all of these apply should be heard in HC - cases can be transferred from CC to HC
CIVIL COURTS
1) Kings bench division
- claims of contract or tort (commercial disputes)
2) Chancery Division
- Property, land, trusts, intellectual property
3) Family Division
Within divisions are Business Property CTS, specialist courts comprising of:
* Commercial Court - most important, sits within KBD, complex cases arising out of business disputes which encompasses all aspects of commercial disputes
* business list - business disputes, with international dimensions
* Admiralty CT - shipping
+ many more
COUNTING TIME
- references to days in litigation are CLEAR DAYS
- DOES NOT apply to time to serve a claim form. This is:
- 4 calendar months - issued 1.1 to be served 1.5
- if outside jurisdiction 6 months for service
- IF counting 5 days or less and weekend or bank holiday included
PERIOD - eg 3,5,14 days
RULE - Count from DAY AFTER period begins
- If end day defined by event DON’T count that day
- CAN’Tk count weekends and bank holidays as part of clear days calc
Examples
14 clear days=
- ack of service within 14 clear days of deemed service of claim form
- CF served 2.10
- Last day to file ack = 16.10
Hearing =
- app filed 3 days before hearing
- hearing 16.12
- file on 12.12
5 days or less which includes - Saturday, Sunday or bank holiday =
- count from day after period begins
- if end of period is defined by an event - hearing don’t count that day
- Sat, sun and bank hols are NOT counted?
- affidavit serve 5 days before a hearing =
- Hearing wed 16.4
- serve by 8.4
CAREFUL
- Date of service is NOT necessarily date actually served under CPR
- it depends on what method of service use
METHOD
1) 1st class post or doc exchange
- 2nd day after posting if business day, if NOT next business day
2) Email
- emailed on bus day before 4.30pm, THAT business day, if not NEXT business day
3) Personal service
- if personally delivered on business day before 4.30pm, THAT business day, if not NEXT business day
4) Left at an address
- If left on bus day before 4.30 pm, THAT business day, if not NEXT business day
Example
Hearing Fri 14.6- 3 clear days - have to serve Monday 10.6
Posting 1st class- date of service must be 10.6 so, must actually post friday, as monday would be next bus day after sunday
Hearsay in civil litigation, what is it and how is it dealt with?
- it is written/oral statement by a witness made out of court then repeated in court to prove matter to be true
- evidence of fact/perceived fact - not opinion
- relevance principles apply
- further removed the less weight given
- repeated once = 1st degree hearsay
- Civil litigation provides hearsay IS admissible , provided it is relevant. Up to Judge to consider weight of it. If repeated and repeated will hold less weight.
- If want to use hearsay evidence, 2 possible procedures;
1) - if witness coming to trial - serve on other side.
2) - If witness not coming; - serve statement together with hearsay notice, stating witness will not be called and why.
- whole witness becomes hearsay
- other party DO have right to cross examine witness. Must make application to cross examine NO LATER THAN 14 DAYS - CLEAR DAYS after service of the hearsay notice
1) - Witness Evidence in civil litigation.
2) - What is the exception to witness evidence?
1)
- exchanged between parties, times set by directions
- Must be relevant and of fact, not opinion
- forms part of trial bundle
- Witness statement contains all evidence that the witness will give orally at court
- deemed to deliver statement as in trial bundle - then moves to cross examination
- sign statement of truth
- statements are used for the majority of applications. Summary judgements etc, interim apps (application, draft order and statement)
2) - Affidavit
- sworn statement evidence in front of solicitors
- technically can be used at trial and in other interim applications
- BUT because of formalities only time it is used is for freezing injunctions and search orders.
- all other interim applications and trial need witness statements
Expert Evidence
- used by both parties and have opinion on matters in issue
- must ONLY use experts reasonably required in proceedings
- how many experts to be used will be determined at case management conference, as indicated by parties in filed directions questionnaire.
- MUST get courts permission to use experts
- FAST TRACK (FT)cases = simple, less financial stake and less complicated.
- FT no case management conference, that is D/W at allocation where directions given.
- FT normally uses single joint expert, both parties share expert and prepare joint instructions and share cost.
- In FT only 1 expert allowed
- Intermediate case = most can have is 2 experts per party
- In Multi track - can have more than 2 per party on more than one issue.
Requirements of an EXPERT WITNESS
- overriding duty to act
- can be a risk to party as can give opinion not favourable to party using it. Experts must give true evidence
- must be completely objective and unbiased when providing opinion to CT
- can seek guidance from court if unsure about something
- Overriding duty overrides contractual duties to relevant parties. Any attempt to bind to opinion cannot work under CPR rules
- expert produces report giving opinion. Under CPR report must contain qualifications and in particular confirmation of compliance with overriding duties.
- if 2 experts produce reports and serve on parties, and they differ on different things. Court can order a without prejudice discussion. Experts and lawyers get together and try to narrow issues in dispute. If matters still disputed they then provide final summary to court containing issues to be addressed at trial.
Overriding objective 1.1
1.1(1) - justify at proportionate cost
1.1(2) - parties on equal footing, save money - objective to be quick and cheap, proportionate, complainant and defendant have a duty to comply with
STATEMENT OF CASE
WHAT ARE THESE?
- docs in which parties set out their case
- CT will only try issues that are statements of case
- can’t pursue issue of remedy of claim NOT in statements of case
- set out parameters and ID issues in dispute
- docs are Claim Form, partics of claim, defence counterclaim, reply to defence
CLAIM FORM- what must be inc
1) Claimant and defs details - name and address, if comp use their registered address
2) Brief details of claim - concise statement of nature of claim, and remedy sought by C
3) Value amount/claimed -
-value of contract/neg claim
- state price of contract
- then amount seeking - unlikely to be same after take off mitigation costs
- if specified sum state that
- if unspecified - MUST say how much EXPECT to recover eg between 10-25K
- also must insert court fee
4) claimant sols costs – ONLY if specified sum
5) HRA 98 - MUST state if included issues under HRA
6) Statement of truth - signed by C’s sol or party
PARTICULARS OF CLAIM PofC
- must be concise and deal with essential facts of cause of action
- can be in form or separate doc
- if C seeking interest MUST state this to
Structure
1) - status of parties who is C and def, profession of each
2) - Background - relevant facts - when contract entered into, pre contract statements, or what duty is owed to C
3) - details of contract itself - subject matter, purpose, date signed, consideration. Contract will also be attached
4) - terms of contract - express and implied
5) - Details of breach - contract or duty - called particulars of breach, and sets out why breach occurred.
6) - Consequences of breach - causation as a result C suffered loss
7) - details of loss suffered
8) - relief claimed - particulars of loss and damage - sets out amount of damages C is claiming for
9) - interest claimed
10) - Prayer - summarises amount C claims- damages and interest
11) statement of truth - where particulars not served with claim form - signed by sol or client
If seeking interest, must:
1) - state grounds on which claiming, 3 grounds for breach of contract
i) contract has clause showing how interest should be calculated
ii) Late payment of com debts interest act 1998 - debts between businesses only , 8% above bank of England base rate,or
iii) if not i) or ii)s35a senior courts act 1981.s69 county courts act 1984 this means;
- CT has discretion to give interest, C requesting CT to do so rather than providing specific ground
- C can give specific calcs for interest ie 8% above base rate or leave to CT to decide
For negligence s35a SCA /s69 CCA if no contract
2) - if claim specified amount of money, amount of interest claimed and method calc that amount ( with ref to total sum claimed on which inter3st is calculated)
- if unspecified courts will calculate
IF DON’T ENCLOSE CLAIM FOR INTEREST IN PARTICULARS WON’T GET ANY
DEFENCE
- must deal with each allegation
- each allegation must either:
a) deny and provide reasons why, if different version MUST put it forward
b) state they can’t admit or deny but requires C to prove it ie provided further evidence and explanation
c) admit - may be just some parts or all of it
- structure of defence follows particulars, DEF answering in same order, ensures nothing missed
- if def fails to deal with issue DEEMED to have ADMITTED it
- defence must contain statement of truth
- as either admits denies of requires proof role of statements in case becomes clearer, and narrows issues in dispute
REPLY TO DEFENCE
- C may reply to a defence but under NO OBLIGATION to do so
- may wish to so to answer any new facts put forward in defence
- C cannot raise new causes of action in the reply or try and amend the PofC
- reply MUST be verified by State of truth
- if C does reply they must file it at CT with directions questionnaire and serve on Def
- DEADLINE is max 28 clear days from date of provisional allocation notice
COUNTERCLAIM
- partics of counterclaim contained in defence IN SAME doc, with particulars of counterclaim forming second half of document
- contain grounds on which Def counterclaiming, loss suffered and how much being claimed to particulars of loss and damage
- It is its own particulars within the defence
- Once filed C MUST file defence within 14 days - no option to file AoS BUT can be 28 days if parties agree to that themselves
- like defence to any claim so follows particulars of counter claim
- I C makes reply this will be in same doc as defence to the counterclaim
- In this case CT will order defence and reply to be filed within certain number of days of the provisional notice of track allocation
PART 20 CLAIM
- claims made by def against the C or 3rd party
- 3 kinds
1) counterclaim - as above against C or C and 3rd party
* before making claim Def MUST get an order from CT adding 3rd party as party to proceedings - app to CT, with evidence, without notice, with draft statement of case
* If 3rd party added, CT will issue directions in respect of this party
* Def must then make counterclaim against 3rd party - like with normal claim form
2) Contribution, indemnity or other remedy sought by def against another party or 3rd party
* contribution, 3rd party liable for some damage Civil liability (contribution) Act 1978
* Indemnity - Def recovering all of their damages from a third party, usually established under a contract
* Some other remedy - means substantial connection between C’s claim and defs claim against 3rd party eg damages for related car accident
* Even if one of above court retains discretion and REJECT defs claim
- In this situation CT looking for significant connection between C’s claim and defs part 20 claim
* If DEF seeking contribution or indemnity from co-def, to do without CT permission DEF must serve contribution notice on that party with the defence or, if co def has been added later, within 28 days of them being added.
- Otherwise def needs CTs permission
* To make claim against a 3rd party - Def must issue and serve claim form on that party.
- with or without CTS permission, IF done at same time as defence is filed, or with if after - meaning def makes a without-notice applicaiton with evidence.
- CT will exercise discretion
* Defs claim form must be served within 14 days of being issued
- must be served on 3rd party and existing parties, with copies of the statements of case used in the proceedings
* third party will then file a defence to the additional claim
- court will exercise its discretion
3) -IF DEF want to add 4th party must issue and serve a claim form, must seek CTS permission to do so
3) where D has made additional claim against 3rd party & 3rd party makes claim against 4th party - to pass liability on to them
-IF DEF want to add 4th party must issue and serve a claim form, must seek CTS permission to do so
AMENDMENTS TO STATEMENTS OF CASE
- if mistake or new facts come to light particulars of claim or defence can be amended. different processes depending if limitation period passed
Before expiry of limitation period:,
- can amend particulars or defence at any time before served.
- if docs have been served party must get:
i) written consent of other party
ii) permission of court
- if requesting permission must file
i) copy of doc want to amend
ii) proposed amendments
iii) app notice - with draft order, must be served on other side as per general procedure for application and
iv) accompanied by statement of truth
- CT will decide whether to allow an amendment
- burden on amending party to persuade CT
After expiry of limitation period;
i) add or substitute new claim, but only where that claim arises out of same facts as claim already submitted
ii) - correct a mistake in the name of the party
iii) Alter capacity in which party claims eg individual or business
If amendment granted, party must file the amended document and serve on the other party
Trial
- after statement case served and filed on defence then moves to track allocation
- Before track allocation have provisional allocation, then directions questionnaire completed by parties and court decides allocation.
- Court will then issue date case management conference (CMC)or fast track (standard directions) and date for trial set
- At CMC CT issues directions and PROVISIONAL date for trial
- Using pre trial checklist/listing questionnaire CT checks if anything further needs to be done before trial, and if any further directions needed, statement of costs so far also provided.
- CT always wants parties to be transparent and efficient.
- If court happy with responses will confirm date, time and venue for trial.
- If both parties fail to file pre trial checklist then case STRUCK OUT
- If 1 party fails to file pre trial checklist then there will be a hearing and costs implications. Ct will give party 7 further days to file.
Trial bundle
- prepared by claimant
- documents necessary in a trial bundle=
- statements
- Exhibits
- Disclosure documents
- experts
- disclosure
- answers to directions questionnaire
- bundle served on defence and filed at court
- Must be served no more than 7 or less than 3 clear days before trial
- must be indexed
- In MT case claimant also provides case summary
- MT case can have PTR, if
- really complex
- lots witnesses and experts
- then will confirm date, time and venue of trial
Witnesses- if won’t attend?
- attendance is voluntary
- if worried won’t attend apply for witness summons
- Court then serves summons at least 7 clear days before trial
Trial procedure
1) - preliminary issues - making sure no further applications to make and that ready for trial, no settlement on cards
2) Claimants opening speech
3) Exam in chief and cross exam
4) Def and cross exam
5) Closing speeches
6) Judgement FT & IT - same day MT - at later date
Judgement
- varies
- FT & IT - sum only assessment, on same day and costs fixed
- MT
- more likely judgement later date
- costs at detailed cost assessment hearing
