Disputes Resolution 8: Trail & Appeals Flashcards
Process for settlement before trial
If in a way other than by Part 36 Order
Parties must:
- record terms of agreement including settlement costs in writing
- to be done in appropriately worded concept order (eg. Tomlin Order)
Otherwise no automatic right to payment, meaning no enforceable obligation to pay)
Tomlin Order - Parts and Effect
Parts
- the order which confirms that parties have agreed settlement , that the case is stayed pending terms of settlement being carried out
- schedule confirming the amount and date of payment (and from whom)
Effect
- proceedings are stayed and can be resumed if non-compliance (rather than issuing new proceedings)
When is a Pre-Trial Hearing used, what is it and when does it happen?
Generally used for multi track case. Purpose is make sure that everything is in place and avoid wasted time/delay.
Takes place at least 10 weeks before trial date.
What might the agenda be at a pre trial hearing?
- Court may consider extent to which parties have complied with orders and directions,
- set a trial timetable
- set the number of experts and witnesses that may give evidence at trial.
What is a case summary?
To be prepared and served before hearing by parties (together when possible) together with list of issues.
- should not be more than 500 words
Should include
- agreed facts
- what is in dispute
- synopsis of evidence that is believed to be required at trial
Witness Summons (how to issue and effect)
How to issue
- party to send court separate summons for each witness + a copy
- court fee
- conduct money
- party must then serve summons at least 7 days before trial
Effect
- if witness fails to show then in contempt of court
- may lead to fine
Rules for Conduct Money for witnesses
Must be sufficient to cover the travel cost and loss of income
Max amount of £67
- additional may be required subsidence or overnight stay
Modes of Address for different judges
District (DJ) - Judge
Circuit (HHJ) - Your honour
Master - Judge
High Court (J) - My Lord/Lady
Court of Appeal (LJ) - My Lord / Lady
Courtroom Etiquette
Attire
- Solicitor: suit, modest jewellery
- gown, collar (no wig) if solicitor advocate
Devices
- turned off
- use of phone or making recording = contempt of court
- bow to judge when entering or leaving
- Eating/drinking to be avoided
- must be courteous to all
Who prepares Trial Bundle Rules and contents
Claimants solicitor to prepare copies for each party and one for witnesses and bear expenses
Must be filed 3-7 days pre trial
To include:
- info about parties
- case summary
- schedule of issues
- witness statements
- expert reports
Trial Format Rules and General Process
Timetable to set how process will go, judge can depart from this
- opening submission (claimant then defendant)
- consideration of preliminary issues
- C’s witness evidence (evidence in chief)
- cross examination
-re examination - C’s experts evidence
- cross examination
-re examination - D’s witness evidence
- cross examination
-re examination - D’s experts evidence
- cross examination
-re examination
What questions are permitted during cross-examination vs re-examination
Cross examination
- leading questions; and
- non-leading questions
Re-Examination
- non-leading questions only
Leading questions: prompts desired outcome (ie. you did X didn’t you)
Non- Leading: typically start with how/where/what/when
When will judge pass judgement
- immediately;
- after retiring briefly; or
- if need more time may reserve judgment and list matter for further hearing on date agreed
What are ancillary matters after judgment
Interest - calculation of interest normally handed down in judgement
cost - normally losing party and handed down in judgement
Time to pay - party may make request for
Stay of execution - if intending to appeal party may request stay of execution
Permission to appeal -
When / how can party discontinue claim? What effect does this have?
Generally must file and serve notice of discontinuance
May need to obtain permission if:
- active interim injunction
- active interim payment
Effect
- generally have to pay other sides cost for defending (subject to application of qualified oneway cost shifting)
Who/how must you apply to for permission to appeal
No automatic right to appeal in civil law case so must seek permission.
Can apply to:
- court where decision was made (orally after judgment or in writing), or
- the appeal court (only in writing)
Grounds for Appeal
- The decision is wrong in fact, law or the exercise of court’s direction
- eg. judge records key witness evidence incorrectly (fact)
- applies law incorrectly (law) - the decision is unjust because of serious procedural or other irregularity in the proceedings
If oral permission is not given can you still appeal in writing?
Yes, subject to the 21 day time limit from day judgement is formally handed down
Time limit for appeal
Orally must be done immediately after judgment or order
In writing must be in 21 days of judgement is handed down (can ask for extension)
What does the CoA consider for retrospective appeals (relief of sanctions)
Must be pursuaded it is reasonbale considering:
- The seriousness and significance of failure to comply with the rules
- why the default occurred, and
- Evaluation of the circumstances of the case (to deal with it in just manner)
What is the process of the court considering an appeal?
normally considers notice and application without hearing.
- If granted matter listed for hearing for appeal to be heard.
- if not granted party can request oral hearing within 7 days of service of court order refusing permission (court need not approve this).
What is looked at in the Appeal Hearing?
Limited to the review of the decision of lower court (not a full rehearing)
Cannot rely on new evidence (unless given permission)
What is a ‘rolled up’ hearing in Appeals?
Where a court determines the application for permission and then considers apple in same hearing.
