DR Extra Flashcards
Appeals.
What 3 factors needs to be considered?
Give the overall process for launching an appeal
Grounds
Permission
Destination
Grounds:
First appeal - the appeal has a real prospect of success; or that there is some other compelling reason why appeal should be heard
Second appeal:
CofA will need give permission for second appeal unless:
-appeal have real prospect of success and address some other important point on law or practice
-some other compelling reasons for CofA to hear it
Permission:
Two choices:
-Apply for permission from lower court at time when decision to be appealed is made (done orally - saves times and costs and does not prevent later app to appeal court), and/or
-Make app to appeal court later:
–File an appellant’s notice (Form N161) - used to request permission (more time to prepare app)
–Must be filed within 21 days of date of lower court’s decision using Form N161
IF appeal in CofA - determined on papers alone (default position). If judge believes should be dealt with orally - will list hearing within 14 days
IF appeal in CC or HC - if appeal court refuses paper application for permission, appellant may request (within 7 days of paper app refusing permission) that decision be reconsidered at oral hearing. If permission refused at oral hearing - appeal not possible
-Once permission granted - appellant’ s notice becomes doc which initiates appeal (give details of appeal, evidence and supporting documentation)
Destination:
-CC district judge - appeal to CC circuit judge
-CC Circuit judge - HC judge
-HC Master - HC judge
-HC judge - CofA
What are the rules with stays regarding appeals?
Powers on appeal in appeal court?
general rule: appeal does not operate as a stay of execution (offending judgment still effective)
Can lead to unfairness:
HC + CofA have power to stay the judgment pending outcome of appeal
Powers on appeal = has all the powers of the lower court, could:
-affirm, set aside, vary
-order new trial or hearing
-costs orders
What are the grounds which justify being brought in HC?
a) financial value - over 100,000/50,000
b) complexity of facts/legal issues
c) importance to public
Service of claim form and particulars:
what is the relevant step for claim form?
-Personal service
-post
-Fax
-Email
When is a claim form deemed served?
When is a particulars deemed served?
Personal service: leaving with D
First class post/DX: posting claim form/leaving with DX service
Fax: Completing transmission
Email: sending email
Claim form - second business day after completion of relevant step
Particulars -
Instant methods (before 4.30pm on business day - same day. Otherwise next business day
Non-instant (second day after posting if business day, if not then the next business day - fri would be mon)
What are parties required to consider would be useful at a CMC? What is this?
Case summary
A short doc of no more than 500 words, prepared by C and agreed between parties
Should contain:
-chronology of claim
-factual issues agreed and in dispute
-Nature of evidence needed to decide them
What usually takes place at CMC as well? What is this?
What if party fails to file a budget?
Costs management conference
Court considers whether budgeted costs fall within range of reasonable and proportionate
Treated as having filed a costs budget comprising of only applicable court fees (draconian as normal costs are significantly more)
What 2 things must be included in a trial bundle in a HC case? What is each?
Skeleton argument (concisely summarises submissions)
List of authorities by 5pm day before hearing
What is the trial order of events and what happens in each?
C’s opening speech - describe nature of claim and identify issues to be tried
C’s case - evidence called including witnesses (witness statement acts as evidence in chief and witness will stand and confirm evidence)
D can then cross-examine witness (leading Qs)
C can then re-examine witness (non-leading)
D’s case - same as above
Closing speeches:
-D closing speech first then C
What 4 things can a party do if they are served with hearsay evidence?
- Request particulars of hearsay
- Call for cross-examination. Where person is not called as evidence, any party may with permission of court, call that person as a witness and cross-examine them (as if hearsay was evidence in chief) - app must be made no later than 14 days after hearsay notice served
- Challenge weight of hearsay evidence at trial
- Attack credibility of absent witness - should show that absent witness has made inconsistent or contradictory statements - app must be no later than 14 days after hearsay notice served
Part 36:
General rule?
Consequences of:
D’s offer not accepted?
C’s offer not accepted?
Part 36 applies where party who doesn’t accept fails to obtain a judgment MORE advantageous than offer
D’s offer not accepted = C pays costs (and interest on those costs) from end of relevant period on the standard basis UNLESS unjust
C’s offer not accepted = unless unjust must order:
-Interest on award at rate not exceeding 10% above base rate
-Costs from need of relevant period on indemnity basis
-Interest on those costs not exceeding 10% above base rate
-Additional amount (10% up to £500,000, 5% after this - capped at £75,000)
ADR and the court’s encouragement including consequences of failing to partake?
Cannot compel a party to engage in ADR (but can encourage)
Costs:
-If party refuses to engage in ADR, court will consider whether this refusal is reasonable
-If not, may impose penalty
-Burden of proof - unsuccessful party to show why court should depart on general rule on costs (to deprive successful party from failing to engage in ADR)
Can stay proceedings so that parties engage in ADR
Expert evidence overview:
What should a party do if they want to adduce expert evidence at trial? Why?
What should party do?
What must be done with expert reports before trial?
Seek a court order. Expert e may not be required for dispute
When applying for permission, party must:
-Provide estimate of costs of proposed expert evidence
-Identify field in which expert evidence is required (and if practicable name of proposed expert but should only name if sure to use them - otherwise will need to seek another court order if change)
Info must be set out in directions questionnaire
Must be exchanged with other side
Expert evidence
What are often ordered in small and fast track claims?
What can be done after expert reports exchanged?
Single joint expert - if parties cannot agree, can select from list provided by court
Can put written expert’s to other party’s expert (or single expert):
-Must be submitted within 28 days of service of report
-Qs must be sent to other side as well
-Qs become part of report
What is the name of the new track?
When would it be used?
What is not needed under this?
How long will whole period last?
Intermediate track
Claims up to £100,000 (where not suitable for fast track or small claims) provided that:
a) trial is likely to last no longer than 3 days if MANAGED PROPORTIONATELY, and
b) oral expert evidence is likely to be limited to 2 experts per party
Multi-track used for other types of case
Where claim is brought by single cC against 1-2 Ds, or 2Cs against 1 D (3 parties is max)
Case and costs management conference (but court can fix a CMC if needed) - parties must agree directions and submit them to court 7 days in advance of CMC
30 weeks
Costs on the new intermediate track?
4 complexity bands (determine amount that can be claimed from other party is costs order is made) - also applies to fast track
Parties are required to state on directions questionnaire, either agreed complexity band (or the band considered appropriate by each party if there is a dispute)
