DR 6: Preparations for trial, trial procedure, trial costs and appeals Flashcards
To ensure no issues on day, what should witness be told/asked?
□ be asked, at an early stage, if there are any dates when they cannot attend; and
□ be notified of the trial date without delay.
Where will witnesses availability be given to court?
1) Directions questionnaire
2) Pre trial checklist
What is a witness summons?
Doc issued by court requiring witness to:
* attend court to give evidence
* and/or produce documents to the court.
Time limit for issuing and serving witness summons and consequences of missing/complying
□ at least 7d before date witness required at court or courts permission required (if served without permission with in 7d wont be binding)
□ Complicnce: summons binding and witness will be fined/imprisoned (in High Court)
What must a witness be offered with a witness summons?
(a) a sum reasonably sufficient to cover their expenses in travelling to and from the court
(b) AND compensation for loss of time as specified in Part 34.
Who is a witness summons NOT applicable for?
expert witness
What is the advantage of issuing a witness summons?
judge is likely to be sympathetic to an adjournment of the trial should the witness fail to attend
Can a witness apply to set aside a witness summons?
Yes
Can a witness be prepared for trial?
CANNOT coach
Witness familiarisation fine (if value of claim makes it worth it)
Where are pre trial checklists (listing questionnaires) relevant?
*Fast track
*Intermediate track
*Multi track
Purpose of pre trial checklist (listing questionnaires)
*ensure parties complied with all directions/ready for trial
*so judge can decide if further directions/reviewing hearing are needed
Timelimit to file Pre trial checklists (listing questionnaires)
at least 8w before trial
Effect of faliling to comply with a filing a listing questionnaire?
a. By both parties-file within 7d or, claim, defence and counterclaim struck out
b. By 1 party-court fix hearing and ensure case ready for trial
When/why will a judge also order a pre trial review as well as a listing questionnaire?
- Trials expected to last longer than 10d
- Review with parties representatives personally to check progress
What will the court do after the pre trial Listing questionaire/review?
1) Give time estimate and set timetable if necessary;
2) fix place of trial
3) confirm trial date or week it will begin
4)order trial bundle be prepared
What is a trial bundle?
Indexed and paginated file of all docs judge may need to decide case
Max length of trial bundle?
250 pages
Who preps the trial bundle?
Claimant BUT contents should be agreed wherever possible
Time limit to file trial bundle?
between 7-3d before trial
What will a trial bundle include?
◊ claim form and all statements of case;
◊ case summary and/ or chronology
◊ requests for further information and responses;
◊ witness statements;
◊ notices of intention to rely on hearsay
◊ experts’ reports and responses;
◊ directions orders
◊ any other necessary docs containing evidence that a party intends to rely on.
Should the other side be provided with a copy of docs in the trial bundle?
yes
What does a case summary include?
- indicates points still in issue, and the nature of the argument about the disputed matters
- parties submission of fact for each issue
- Points of law relied on
- Identify key docs trial judge should use
On what track should a case summary be prepared?
multi-track
What do you call circuit judges?
your honour
What do you call district judges?
judge
What do you call high court judges?
My Lord/Lady
What do you call a Lord Justice?
My Lord/Lady
What do you call a Supreme Court Justice?
My Lord/Lady
Who sits in the County Court?
Circuit Judge
District Judge
Who sits in the High Court
High Court Judge
District Judge
Who sits in the CoA
Lord Justice
Who sits in the Supreme Court
Supreme Court Justice
When is a trial timetable fixed in advance?
Complex cases lasting several days
What is the usual order of trial for fast/intermediate track?
- Preliminary issues (outstanding issues)
- Opening speeches
- Examination in chief
- Cross examination
- Re-examination
- Closing speeches
- Judgement
When/who will make an opening speech?
Claimant if permitted by judge
How is evidence in chief given in a civil claim?
- Asked to take oath/affirm
- Identify witness statement in trial bundle
- Confirm its true
- =every word in statement then treated as having been said by witness in evidence
Can a witness add to whats in their statement at trial?
PERMISSION required
Will do so if need to:
*amplify statement (ie. Clarify point)
*Give evidence in relation to new matter
*Open questions only
What witnesses give their evidence first?
Claimant (inc for expert witnesses)
Why bother with cross examination?
Mostly witness wont change story so just shows no implied acceptance of evidence and try to discredit witness
When will the judgement be given?
- Immediately
- OR Reserved for later date if case complex
When will the judgement take effect?
on day made unless order specifies different date
Contents of judgement?
1.Liability-has C est cause of action?
2. Review evidence and provide reasons
3. Costs
If C wins also:
4.. Quantum (specified claim=total caluclated, unspecified claim=consider each category of damages)
5. Interest
Normal position for costs
looser pays winners costs but court can make different order
Time dealine for money awarded (inc. costs) to be paid?
within 14d
What is the difference between hostile and unfavourable witnesses?
- Unfavourable witnesses: Don’t answer as hoped for proper reasons (eg. Forgotten/nterpret in different way)
- Hostile witness: Your own witness whos now unwilling to support party so may refuse to answer/lie=evidence differs from that in statement
If your witness is hostile, what can you do?
Ask judge to declare them a hostile witness so advocate can:
◊ Attack credibility
◊ Cross examine as if they’re a witness for the other side
2 purposes of appeals?
- Private purpose: correcting wrong decisions
- Public purpose: maintaining public confidence in administration of justice by corrections and clarifying/developing the law.
Grounds for 1st appeal
- real and realistic prospect of success
- OR some other compelling reason why the appeal should be heard (eg. Important q of law/public policy)
Grounds for 2nd appeal?
*Permission required from CoA
*same grounds as 1st AND appeal must raise important point of principle or practice
are second appeals common?
No
Timelimit to apply for appeal
21d against CC/HC decision
28d to apply for leave from CoA or SC
Is there an automatic right of appeal in civil cases?
no
How/When/where is a request for appeal made?
□ Mostly at end of trial
□ OR if request unsuccessful/none made, apply to appeal court:
*Court usually deals with request on paper without hearing
*BUT CoA judge may list matter for oral hearing no later than 14d after relevant direction if they decide the application cannot be fairly determined without presence of parties
What is the general rule for who will hear your appeal?
judge next up in hierarchy
Who is a decision of a district judge in the CC appealed to?
Circuit judge of CC
Who is a decision of a master or district judge of crown court appealed to?
High Court Judge
Who is a decision of a circuit judge appealed to?
High Court judge
Who is a decision of a high court judge appealed to?
Court of appeal
What is a leapfrog appeal?
*Appeal normally to County/High Court may jump straight to CoA
*Appeal normally in CoA may jump straight to Supreme Court
When will permission for a leapfrog appeal be granted?
◊ Important point of principle or practice
◊some other compelling reason why CoA should hear it
(Normally point of law of general public importance (eg. Construction of a statute/statutory instrument/matter of national importance)
Grounds for granting a leapfrog appeal? (NOT permission)
Decision of lower court was :
a) Wrong (as to law, facts or exercise of discretion)
b) Unjust because of a serious procedural irregularity in the proceedings of the lower court.
General rule as to costs?
Looser pays winners costs (is a starting point, judge has discretion to make different costs orders if deemed appropriate)
How are costs determnied according to track?
□ Small claims-legal costs not recoverable, disbursements only
□ Fast/intermediate tracks-fixed costs
□ Multi track-detailed assessment of costs
Advantages and disadvantages of fixed costs?
□ Advantage: certainty as to amount owed if loose, reduces costs, simplifies process
□ Disadvantages: winning party as they’re v unlikely to recover all costs
What is the effect of the complexity band of the case on fixed costs?
Determines amount of legal costs recovered Generally, the higher the band and the later the settlement is reached, the higher the costs
Are disbursements allowed to be recovered in fixed costs?
Yes if reasonably incurred
When will an application for costs higher than the fixed costs be granted?
In exceptional circumstances
What may be done to fixed costs for unreasonable conduct?
*May be increased as paying party
*Or decreased as receiving party
*By 50%
What is a summary assessment
For when costs arent fixed, summarry assessment=court determines amount immediately
If the court cant make a summary assessment due to insufficient time, what will happen?
Will have a detailed assessment of costs
What should the parties do to assit the court with a summary assessment
Serve Statement of Costs at least 24h before interim hearing
For a detailed assessment of costs, what should the receiving party serve on paying party and when?
Within 3mo date of judgement order:
1. Notice of Commencement of detailed assessment proceedings
2. Bill of costs
3. Evidence in support (eg receipts)
What happens if paying party wishes to challenge bill in detailed costs assessment?
1.Serve points of dispute within 21d
2. Receiving party reply in 21d
3. Receiving party file request for assessment hearing within 3mo of the expiry of the period for commencing detailed assessment proceedings
4. If costs less than £75k, court undertakes provisional assessment where judge decides what costs are allowable in absence of parties
5. Either party unhappy: request oral hearing within 21d ( but if the party fails to achieve an adjustment in their favour by at least 20% they will be ordered to pay the costs of the hearing)
Meaning of Inter partes costs?
‘between the parties’ costs
What happens in respect of interim inter partes costs ?
Unless fixed costs apply, judge will determine who is to pay costs and will usually summarily (instantly) assess amount
Examples of interim inter partes costs?
□ for summary judgement
□ to set aside default judgement
□ To strike out a parties statement of case
What factors are taken into account when assessing amount of final partes costs in multi track cases?
Part 44:
(a) conduct of parties and efforts made to try and resolve
(b) value of £/prop involved;
(c) importance of the matter to the parties;
(d) complexity of the matter;
(e) skill, effort, specialised knowledge and responsibility involved;
(f) time spent on the case;
(g) place and circumstances in which the work was done
(h) receiving party’s last approved or agreed budget.
What basis may final inter partes costs be awarded on?
- Standard basis
- Indemnity basis
How are costs assessed on the standard basis?
- Are the costs reasonable? (reasonably incurred/in amount)
- Are the costs proportionate to the matter in issue?
- Doubt: resolved in favour of paying party
For the standard basis, when will costs be proportionate?
Will be if they bear a reasonable relationship to:
– Sums in issue
– Value of non-monetary relief in issue
– Complexity of the litigation
– Additional work generated by conduct of paying party
– Any wider factors
What happens if costs are not deemed proportionate on the standard basis?
Judge scrutinises categories of cost (eg disclosure or factual evidence), to decide whether they should be further reduced. Once any such reductions have been made, the resulting figure is the final amount of the costs assessment
How are costs assessed on the indemnity basis?
Not bound to estimated costs
1. Are the costs reasonable? (incurred and in amount)
2. Proportionate-n/a (so will be higher)
3. Doubt: benefit of the doubt is given to the receiving party
When assessing costs on the standard basis, what costs will be assessed and what costs will be fixed?
- Incurred costs assessed
- Budgeted costs fixed by costs budget BUT court may depart if theres a good reason to do so
