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SQE FLK > 🗣️DR 6: Preparations for trial, trial procedure, trial costs and appeals > Flashcards

🗣️DR 6: Preparations for trial, trial procedure, trial costs and appeals Flashcards

1
Q

To ensure no issues on day, what should witness be told/asked?

A

□ be asked, at an early stage, if there are any dates when they cannot attend; and
□ be notified of the trial date without delay.

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2
Q

Where will witnesses availability be given to court?

A

1) Directions questionnaire
2) Pre trial checklist

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3
Q

What is a witness summons?

A

Doc issued by court requiring witness to:
* attend court to give evidence
* and/or produce documents to the court.

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4
Q

Time limit for issuing and serving witness summons and consequences of missing/complying

A

□ at least 7d before date witness required at court or courts permission required (if served without permission within 7d wont be binding)
□ Complicnce: summons binding and witness will be fined/imprisoned (in High Court)

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5
Q

What must a witness be offered with a witness summons?

A

(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.

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6
Q

Who is a witness summons NOT applicable for?

A

expert witness

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7
Q

What is the advantage of issuing a witness summons?

A

judge is likely to be sympathetic to an adjournment of the trial should the witness fail to attend

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8
Q

Can a witness apply to set aside a witness summons?

A

Yes

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9
Q

Can a witness be prepared for trial?

A

CANNOT coach
Witness familiarisation fine (if value of claim makes it worth it)

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10
Q

Where are pre trial checklists (listing questionnaires) relevant?

A

*Fast track
*Intermediate track
*Multi track

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11
Q

Purpose of pre trial checklist (listing questionnaires)

A
  1. Ensure parties complied with all directions/ready for trial
  2. So judge can decide if further directions/reviewing hearing are needed
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12
Q

Timelimit to file Pre trial checklists (listing questionnaires)

A

at least 8w before trial

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13
Q

Effect of failing to comply with a filing a listing questionnaire?

A

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

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14
Q

When/why will a judge also order a pre trial review as well as a listing questionnaire?

A
  1. Trials expected to last longer than 10d
  2. Review with parties representatives personally to check progress
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15
Q

What will the court do after the pre trial review/Listing questionaire?

A

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

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16
Q

What is a trial bundle?

A

Indexed and paginated file of all docs judge may need to decide case

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17
Q

Max length of trial bundle?

A

250 pages

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18
Q

Who preps the trial bundle?

A

Claimant BUT contents should be agreed wherever possible

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19
Q

Time limit to file trial bundle?

A

between 7-3d before trial

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20
Q

8

What will a trial bundle include?

A
  1. All statements of case
  2. Case summary and/ or chronology
  3. Requests for further info and responses
  4. Witness statements
  5. Notices of intention to rely on hearsay
  6. Experts’ reports and responses
  7. Directions orders
  8. Any other necessary docs containing evidence that a party intends to rely on.
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21
Q

Should the other side be provided with a copy of docs in the trial bundle?

A

yes

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22
Q

What does a case summary include?

A
  1. Points still in issue, and nature of the argument about the disputed matters
  2. parties submission of fact for each issue
  3. Points of law relied on
  4. Identify key docs trial judge should use
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23
Q

On what track should a case summary be prepared?

A

multi-track

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24
Q

How to address circuit, district, HC, Lord justices and SC judges?

A

District: Judge
Circuit: Your honour
HC/Lord justice/SC justice: My Lord/Lady

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25
Who sits in the County Court?
Circuit Judge District Judge
26
Who sits in the High Court
High Court Judge District Judge
27
Who sits in the CoA
Lord Justice
28
Who sits in the Supreme Court
Supreme Court Justice
29
When is a trial timetable fixed in advance?
Complex cases lasting several days
30
What is the usual order of trial for fast/intermediate track?
1. Preliminary issues (outstanding issues) 2. Opening speeches 3. Examination in chief 4. Cross examination 5. Re-examination 6. Closing speeches 7. Judgement
31
When/who will make an opening speech?
Claimant if permitted by judge
32
How is evidence in chief given in a civil claim?
1. Asked to take oath/affirm 2. Identify witness statement in trial bundle 3. Confirm its true 4. =every word in statement then treated as having been said by witness in evidence
33
When can a witness add to whats in their statement at trial?
WithPERMISSION if need to: a. amplify statement (ie. Clarify point) b. Give evidence in relation to new matter Open questions only
34
What witnesses give their evidence first?
Claimant (inc for expert witnesses)
35
Why bother with cross examination?
Mostly witness wont change story so just **shows no implied acceptance of evidence** and try to **discredit** witness
36
When will the judgement be given?
1. Immediately 2. OR Reserved for later date if case complex
37
When will the judgement take effect?
on day made unless order specifies different date
38
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**
39
Time dealine for money awarded (inc. costs) to be paid?
within 14d
40
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
41
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
42
# Appeals 2 purposes of appeals?
1. **Private purpose**: correcting wrong decisions 2. **Public purpose**: maintaining public confidence in administration of justice by corrections and clarifying/developing the law.
43
# Appeal Grounds for permission to appeal (1st and second)
1st a. real and realistic prospect of success b. OR some other compelling reason why the appeal should be heard (eg. Important q of law/public policy) 2nd Above AND appeal must raise important point of principle or practice AND permission from CoA
44
are second appeals common?
No
45
Timelimit to apply for appeal
**21d** against CC/HC decision **28d** to apply for leave from CoA or SC
46
Is there an automatic right of appeal in civil cases?
no
47
How/When/where is a request for appeal made?
a. Mostly at end of trial b. OR if request unsuccessful/none made, apply to appeal court: * Court usually deals with request on paper * BUT CoA judge may list matter for oral hearing no later than 14d after relevant direction if they decide the app cannot be fairly determined without presence of parties
48
What is the general rule for who will hear your appeal?
judge next up in hierarchy
49
Who is a decision of a district judge in the CC appealed to?
Circuit judge of CC
50
Who is a decision of a master or district judge of High Court appealed to?
High Court Judge
51
Who is a decision of a circuit judge appealed to?
High Court judge
52
Who is a decision of a high court judge appealed to?
Court of appeal
53
# 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
54
# Appeals When will permission for a leapfrog appeal be granted?
1. Important point of principle or practice 2. 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))
55
# Appeals Grounds for granting (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.
56
General rule as to costs?
Looser pays winners costs (is a starting point, judge has discretion to make different costs orders if deemed appropriate)
57
How are costs determnied according to track?
SMALL-legal costs not recoverable, disbursements only FAST/INTERMEDIATE: fixed MULTI: summary or detailed assessment of costs
58
Advantages and disadvantages of fixed costs?
□ Advantage: certainty as to amount owed if loose, reduces costs, simplifies process □ Disadvantages: winning party v unlikely to recover all costs
59
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
60
Are disbursements allowed to be recovered in fixed costs?
Yes if reasonably incurred
61
When will an application for costs higher than the fixed costs be granted?
In exceptional circumstances
62
What may be done to fixed costs for unreasonable conduct?
* May be: a. increased as paying party b. or decreased as receiving party * By 50%
63
What is a summary assessment
For when costs arent fixed, summarry assessment=court determines amount immediately
64
If the court cant make a summary assessment due to insufficient time, what will happen?
Will have a detailed assessment of costs
65
Inter parts costs: What should the parties do to assit the court with a summary assessment vs detailed assessment of costs
SUMMARY: Parties serve **Statement of Costs** at least 24h before interim hearing DETAILED ASSESSMENT: Within 3mo date of judgement order: 1. Notice of Commencement of detailed assessment proceedings 2. Bill of costs 3. Evidence in support (eg receipts)
66
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)
67
Meaning of Inter partes costs?
'between the parties' costs
68
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
69
# 8 What factors are taken into account when assessing amount of final partes costs in multi track cases?
Part 44: 1. **conduct** of parties and efforts made to try and resolve 2. **value** of £/prop involved; 3. **importance** of the matter to the parties; 4. **complexity** of the matter; 5. skill, effort, **specialised knowledge** and responsibility involved; 6. **time spent** on the case; 7. **place and circumstances** in which the work was done 8. receiving party’s **last approved or agreed budget**.
70
What basis may final inter partes costs be awarded on?
1. Standard basis 2. Indemnity basis
71
How are costs assessed on the standard basis?
1. BUDGETED COSTS: fixed by costs budget, court will only depart if theres a good reason to (eg. not incurred at all/much less than budgeted) 2. INCURRED COSTS: assessed... 1. Are the costs reasonable? (reasonably incurred/in amount) 2. Are the costs proportionate to the matter in issue? 3. Doubt: resolved in favour of paying party
72
# 5 For the standard basis, when will costs be proportionate?
If they bear a reasonable relationship to: 1. Sums in issue 2. Value of non-monetary relief in issue 3. Complexity of the litigation 4. Additional work generated by conduct of paying party 5. Any wider factors
73
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 reductions made, the resulting figure is the final amount of the costs assessment
74
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

SQE FLK (62 decks)

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