DR 13 - Trial Flashcards
When is a consent order used?
On a matter has been settled between the parties.
If the consent order is breached, the wronged party will have to raise a new claim for the breach.
What are the two types of consent order?
A consent order based on a contract: only rarely be interfered with by the court.
A consent order NOT based on contract: may be altered or varied by the court.
What is a Tomlin Order?
A Tomlin Order is made up of 2 parts;
- the first part is the public part which stays the proceedings
- the second is confidential part and contains the detail of the agreement reached between the parties (normally goes beyond what a court could order).
If the party defaults the stay is lifted.
Where must any direction for payment of money out of court or the payment and/or assessment of costs be included in a Tomlin Order?
Part 1
Can consent orders be used for interim applications?
Yes
Can consent orders be used for pre-action matters?
No - those agreements should be recorded in a settlement agreement.
What is the purpose of a pre-trial check list?
- check that the case management directions previously given have been complied with and that the case is ready for trial;
- give any further necessary directions; and
- fix a date for trial (or confirm a date that has already been fixed).
What does the pre trial check list require of the parties?
- To confirm whether they have complied with the directions given (and, if not, which directions are outstanding and by what date they will be complied with).
- To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions.
- To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally). If it has not, such an order should now be sought by way of application.
- To give details of experts, whether they have met to discuss their reports, and whether their reports have been agreed.
- To give details of dates within the trial period when experts will not be available.
- To give details of witnesses, their availability and any special facilities they require.
- To give details of who will present the case at trial and their availability within the trial period.
- To estimate the trial length, including cross-examination and closing arguments, and to attach a proposed timetable for trial (preferably agreed between the parties).
When will the pre-trial check list be sent to the parties?
A pre-trial checklist is sent to each party at least 14 days before the due date for filing.
When is the due date for the pre-trial check list?
- at least eight weeks prior to the trial date or the start of the trial period.
Parties are encouraged to exchange copies of the pre-trial checklists before filing, to avoid the court being given conflicting or incomplete information
When should the trial bundle be provided to the court?
- no more than seven days and no less than three days before the trial begins.
What should be included in a trial bundle?
- claim form and all statements of case;
- case summary and/or chronology where appropriate;
- requests for further information and responses to these;
- witness statements;
- any hearsay notices;
- any experts’ reports, with responses to them;
- direction orders
- any other relevant docs
- any order giving directions for the conduct of the trial; and
- any other necessary documents.
When should a reading list be included?
In all High Court cases in the Chancery Division and the King’s Bench Division
What does a reading list set out
The estimated time to read the bundle and get to grips with the case.
Which court are Skeleton arguments prepared for
High Court trials
When must a list of authorities be provided?
High court cases
5pm the day before the trial
What is a notice to admit facts
Asking the other side to agree to a fact. If so, the fact need not be proved. A vexatious refusal to admit a fact may be punished.
Are leading questions allowed in cross-examination?
Yes
Are leading questions allowed when re-examining a witness?
No
What is the order of the court case?
Claimant’s opening speech
Claimant’s case
Defendant’s case
Defence closing speech
Claimant’s closing speech
What does ‘Drawing up’ mean?
‘Drawing up’ an order means setting the order out in the formal document to be sealed by the court.
Who is normally responsible for ‘Drawing up’?
The Court
If the Court makes someone else responsible for drawing up an order, when must they do this by?
They are required to file it no later than 7 days after becoming responsible for doing so. If they fail to do so, the other party may draw up the order.
When does a judgement take effect
A judgment or order is effective from the date it is given or made, not served.
When does interest run from?
the date on which the judgement is given.
When is payment due?
14 days from the date of the order
What is the Debt Respite Scheme?
The Scheme allows
- an individual debtor (not a company)
- to approach a debt advice provider (which might be a local authority)
- to ask for ‘breathing space’ of 60 days - on the basis that they are unlikely to be able to repay their debts.
- If the debt advice provider considers it appropriate then they can start a breathing space via the insolvency service, which then notifies the debtor’s creditors.
What happens if a Debt Respite Scheme notification is given?
During the breathing space period:
- all collection and contact with the debtor requesting payment must stop (unless the court gives permission).
- Unless the court gives a creditor permission to continue, the court must also make sure any action to enforce a court order or judgment about a breathing space debt stops during the breathing space.
What sorts of cases can’t be part of the Debt Respite Scheme?
Any judgment for damages for death or personal injury caused to someone else is excluded from the scheme.
How does one get information about a judgement debtor?
Using an Order to obtain information about a judgement debtor.
Does notice need to be served on the defendant to get a Order to obtain information about a judgement debtor?
No
What wording must be contained in a Order to obtain information about a judgement debtor
The order must contain a ‘penal notice’, stating:
‘If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized’
How is a Order to obtain information about a judgement debtor to be served?
Unless the court says otherwise, it must be served personally on the person ordered to attend court
When must an Order to obtain information about a judgement debtor be served?
Not less than 14 days before the hearing
What is the effect of a Order to obtain information about a judgement debtor?
The judgment debtor must then attend court and produce any documents referred to in the order, and answer any questions asked of them on oath