Gaps Flashcards
If D files an AofS and a defense when does the time start running and how long does D have to serve these?
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.
When might the court make a conditional order
When a party applies for a summary judgement.
Why might the court make a conditional order when a party applies for summary judgement
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.
for security of costs to be granted the court must be satisfied of what…?
that in all the circumstances of the case it would be just to make such an order.
requirements for a security of costs order to be granted
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
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
Yes the court MAY take this into consideration
Can the court require parties to enter into a contract as a remedy?
No. This would have to be included in a schedule to a Tomlin Order
Who can apply for permission to obtain copies of documents filed with the court?
Parties and non-parties
Can the court vary the terms of a witness summons once it has been served?
Yes
Who would normally serve a witness summons?
Normally the court but sometimes the party on whose behalf it is issued
Can leading questions be asked in re-examination
Not normally. Normally only open questions
Can you cross examine your own witness
Only if the court declare them hostile
What sort of steps should be taken to comply with a PD or PAP
reasonable and proportionate steps should be taken to identify, narrow and resolve the legal, factual or expert issues
Are parties required to comply with ADR
No but they may need to prove they have considered ADR or may be seen as unreasonable and may have to pay additional costs
What if a party ignores an invitation to participate in ADR or refuses to participate
this could be seen as unreasonable and may lead the court to order that the party pay additional costs
What happens to the limitation period when parties are complying with PD or PAP
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
what does quantum mean?
financial loss
Can a claimant make more than one application for interim payment?
Yes
Will proceedings be transferred to a different court if D files a defence
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
Will an expert need to attend a hearing in person
Not for the small claims or fast track unless it is necessary in the interests of justice
Requirements for evidence to be admitted
relevant and admissible and not within an exclusionary rule
When is evidence relevant
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.
best evidence rule
Now obsolete. Party must produce the best evidence that the nature of the case allows and any less good evidence should be excluded
Does hearsay evidence need to comply with other requirements of admissibility, relevance and not an exclusionary rule.
Yes, if it falls within an exclusionary rule it will not be admissible just because it is hearsay. Must also be relevant
Do you need leave to rely on hearsay
No but must give notice
but leave is required to rely on a witness’ own previous statements
Does an admissible hearsay statement still have to be proved
yes
Define hearsay
A statement made otherwise than by a person while giving oral evidence in the proceedings that is tendered s evidence of the matters stated
Do you need to be originals of the documents contained in the bundle to trial
yes - PD39
What is a leading question
Any question suggesting the answer which the person putting the question wishes or expects to receive
What are preliminary issues
Procedural matters (permission to amend statement of case, to admit evidence)
substantive (points of law, reason/costs)
can you ask leading questions during examination in chief of witness
Not unless there is an agreement
What happens during examination in chief
confirm personal details, confirm content of statement are true, witness statement stands are examination in chief
Can you amplify the witness statement during examination in chief
Yes to make it more clear
Can you ask leading question / closed questions in cross-examination
Yes
What happens during a cross-examination
put your case to undermine the opponent’s case
What happens during re-examination
clarifying points raised in cross-examination
Can you ask leading questions in re-examination
no
During re-examination can you ask questions on issues not raised in cross-examination
no
What should you do if you realize you have mislead the court
make the court aware immediately. If the client does not consent then cease to act
if you cease to act for your client should you tell the court the reasons why
no
What is the standard basis for awarding costs?
proportionate, reasonable and doubt resolved in favour of paying party
What if costs are unreasonably incurred
they will be disallowed
What is costs are unreasonable in amount
they will be reduced
What does it mean if costs are awarded on an indemnity basis
still must be reasonable and proportionate but doubt over reasonableness and proportionality are resolved in favour of receiving party
When ordering costs will the court always follow the last agreed estimate of costs
yes where a costs management order has been made unless there is a good reason on to
what happens if the difference between a bill and a budget filed by a party if 20% or more
Must explain why and if courts do not agree then costs over will be unreasonable and disallowed
Can courts decide not to admit admissible evidence
yes courts have discretion.
CPR Rule 32.1
What is a fact in issue
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.
What is a relevant fact
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.
What is a collateral fact
a fact that affects the weight of the evidence. An example of this would be a fact going to the credibility of a witness.
What are the exclusionary rules
best evidence rule - obsolete hearsay - now allowed opinion evidence - not generally allowed privileged docs - can be excluded without prejudice public interest immunity torture
Can the without prejudice rule prevent evidence from being admitted
Generally prevents statements made in a genuine attempt to settle an existing dispute, written or oral, from being admissible as evidence
Can the without prejudice rule be waived
only with consent of both parties
How is the public interest immunity exclusionary rule applied
balance the public interest in the due administration of justice in disclosing relevant evidence against other public policy reasons for excluding the evidence
