Gaps

Question 1

If D files an AofS and a defense when does the time start running and how long does D have to serve these?

Answer 1

Time starts running from deemed date of service of P of C. Deadline for serving the defence is 28 days after deemed service of the P of C - not 28 days from service of A of S.

Question 2

When might the court make a conditional order

Answer 2

When a party applies for a summary judgement.

Question 3

Why might the court make a conditional order when a party applies for summary judgement

Answer 3

the court may use a conditional order to order a payment into court when it appears possible that a claim or defence may succeed but improbable that it will do so.

Question 4

for security of costs to be granted the court must be satisfied of what…?

Answer 4

that in all the circumstances of the case it would be just to make such an order.

Question 5

requirements for a security of costs order to be granted

Answer 5

C must be a company or other body (incorporated anywhere in the world)
must be reason to believe that it would be unable to pay the Ds costs if ordered to do so

Question 6

when ordering security for costs will the court consider whether a C’s inability to pay costs would in fact be due to the actions of D

Answer 6

Yes the court MAY take this into consideration

Question 7

Can the court require parties to enter into a contract as a remedy?

Answer 7

No. This would have to be included in a schedule to a Tomlin Order

Question 8

Who can apply for permission to obtain copies of documents filed with the court?

Answer 8

Parties and non-parties

Question 9

Can the court vary the terms of a witness summons once it has been served?

Answer 9

Yes

Question 10

Who would normally serve a witness summons?

Answer 10

Normally the court but sometimes the party on whose behalf it is issued

Question 11

Can leading questions be asked in re-examination

Answer 11

Not normally. Normally only open questions

Question 12

Can you cross examine your own witness

Answer 12

Only if the court declare them hostile

Question 13

What sort of steps should be taken to comply with a PD or PAP

Answer 13

reasonable and proportionate steps should be taken to identify, narrow and resolve the legal, factual or expert issues

Question 14

Are parties required to comply with ADR

Answer 14

No but they may need to prove they have considered ADR or may be seen as unreasonable and may have to pay additional costs

Question 15

What if a party ignores an invitation to participate in ADR or refuses to participate

Answer 15

this could be seen as unreasonable and may lead the court to order that the party pay additional costs

Question 16

What happens to the limitation period when parties are complying with PD or PAP

Answer 16

the limitation period is not suspended and will still apply. Should start proceedings to comply with time limit before complying with PAP / PD then apply to the court for a stay of proceedings while they comply with PD / PAP

Question 17

what does quantum mean?

Answer 17

financial loss

Question 18

Can a claimant make more than one application for interim payment?

Answer 18

Yes

Question 19

Will proceedings be transferred to a different court if D files a defence

Answer 19

Yes if they are High Court proceedings for a specified sum and D is an individual the case will be automatically transferred to D’s home court when a defense is filed

Question 20

Will an expert need to attend a hearing in person

Answer 20

Not for the small claims or fast track unless it is necessary in the interests of justice

Question 21

Requirements for evidence to be admitted

Answer 21

relevant and admissible and not within an exclusionary rule

Question 22

When is evidence relevant

Answer 22

To be relevant, the evidence does not have to prove or disprove a fact in issue, but has to assist in proving or disproving or tend to prove or disprove a fact in issue, making it more or less probable.

Question 23

best evidence rule

Answer 23

Now obsolete. Party must produce the best evidence that the nature of the case allows and any less good evidence should be excluded

Question 24

Does hearsay evidence need to comply with other requirements of admissibility, relevance and not an exclusionary rule.

Answer 24

Yes, if it falls within an exclusionary rule it will not be admissible just because it is hearsay. Must also be relevant

Question 25

Do you need leave to rely on hearsay

Answer 25

No but must give notice

but leave is required to rely on a witness’ own previous statements

Question 26

Does an admissible hearsay statement still have to be proved

Answer 26

yes

Question 27

Define hearsay

Answer 27

A statement made otherwise than by a person while giving oral evidence in the proceedings that is tendered s evidence of the matters stated

Question 28

Do you need to be originals of the documents contained in the bundle to trial

Answer 28

yes - PD39

Question 29

What is a leading question

Answer 29

Any question suggesting the answer which the person putting the question wishes or expects to receive

Question 30

What are preliminary issues

Answer 30

Procedural matters (permission to amend statement of case, to admit evidence)

substantive (points of law, reason/costs)

Question 31

can you ask leading questions during examination in chief of witness

Answer 31

Not unless there is an agreement

Question 32

What happens during examination in chief

Answer 32

confirm personal details, confirm content of statement are true, witness statement stands are examination in chief

Question 33

Can you amplify the witness statement during examination in chief

Answer 33

Yes to make it more clear

Question 34

Can you ask leading question / closed questions in cross-examination

Answer 34

Yes

Question 35

What happens during a cross-examination

Answer 35

put your case to undermine the opponent’s case

Question 36

What happens during re-examination

Answer 36

clarifying points raised in cross-examination

Question 37

Can you ask leading questions in re-examination

Answer 37

no

Question 38

During re-examination can you ask questions on issues not raised in cross-examination

Answer 38

no

Question 39

What should you do if you realize you have mislead the court

Answer 39

make the court aware immediately. If the client does not consent then cease to act

Question 40

if you cease to act for your client should you tell the court the reasons why

Answer 40

no

Question 41

What is the standard basis for awarding costs?

Answer 41

proportionate, reasonable and doubt resolved in favour of paying party

Question 42

What if costs are unreasonably incurred

Answer 42

they will be disallowed

Question 43

What is costs are unreasonable in amount

Answer 43

they will be reduced

Question 44

What does it mean if costs are awarded on an indemnity basis

Answer 44

still must be reasonable and proportionate but doubt over reasonableness and proportionality are resolved in favour of receiving party

Question 45

When ordering costs will the court always follow the last agreed estimate of costs

Answer 45

yes where a costs management order has been made unless there is a good reason on to

Question 46

what happens if the difference between a bill and a budget filed by a party if 20% or more

Answer 46

Must explain why and if courts do not agree then costs over will be unreasonable and disallowed

Question 47

Can courts decide not to admit admissible evidence

Answer 47

yes courts have discretion.

CPR Rule 32.1

Question 48

What is a fact in issue

Answer 48

an essential fact that the claimant or defendant must prove to succeed in his case and that is not admitted by the other party

If the defendant admits a fact it will not be in issue and will not need to be proved.

Question 49

What is a relevant fact

Answer 49

one from which a fact in issue may be inferred. For example, it may be inferred from a usual course of business practice that that practice was followed on the occasion in issue.

Question 50

What is a collateral fact

Answer 50

a fact that affects the weight of the evidence. An example of this would be a fact going to the credibility of a witness.

Question 51

What are the exclusionary rules

Answer 51

best evidence rule - obsolete 
hearsay - now allowed
opinion evidence - not generally allowed 
privileged docs - can be excluded 
without prejudice
public interest immunity 
torture

Question 52

Can the without prejudice rule prevent evidence from being admitted

Answer 52

Generally prevents statements made in a genuine attempt to settle an existing dispute, written or oral, from being admissible as evidence

Question 53

Can the without prejudice rule be waived

Answer 53

only with consent of both parties

Question 54

How is the public interest immunity exclusionary rule applied

Answer 54

balance the public interest in the due administration of justice in disclosing relevant evidence against other public policy reasons for excluding the evidence