Pre Civil Flashcards
What are the purposes of Supreme Court Civil Pre-Trial procedures
To inform both parties of the information relating to the case. The plaintiff will find out the information to the defence and the defendant will find out the information relating to the plaintiffs case.
It gives parties an opportunity to determine whether the case is with pursuing
To help parties determine the strengths and weaknesses of each other’s case
The procedure gives multiple opportunities for out of court settlement.
It provides the court with information before the case begins
They might result in some cases being conceded before trial
Pre trial procedures are aimed to get both parties to reveal what they know about the case, in order to clarify what is being claimed against the defendant and what remedy is being sought.
What is the letter of demand
Letter of demand is used to avoid going to procedures and is not lodged writhing the courts. It is the first step in resolving s dispute, with a solicitor sending a letter of demand.
Before going to court a solicitor may seek to resolve the dispute by sending a letter of demand requesting compensation to be made to the plaintiff.
A letter of demand will state that if the request isn’t met, legal action will proceed.
What are pleadings
Pleadings refer to written documents that are exchanged through solicitors between the plaintiff and the defendant. In a civil case, many written statements are exchanged between the paired in order to establish exactly what issues are agreed upon and what issues will be disputed in court.
This process is known as pleadings. This process saves a great deal of time since these matters will be determined before the case reaches the courtroom.
What do pleadings include
- The writ, which is a formal written document outlining that legal action is being taken place, and a statement of claims, outlining claims and remedies being sought.
- Notice of appearance, outlying that the defendant wishes to defend the claims
- Reply to defence, which outlines response to each of the allegations contained in the plaintiffs statement of intention where the defendant either admits or denies claims, and a counterclaim if applicable
- Further and better particulars (optional). A party may file and serve request for further and better particulars of the other parties claim or defence, which is where the party wants more detailed information about the claim or defence. This is done by sending the opposing parties questions, which must be answered.
What are the purposes of pleadings
Require the parties to state the main claims and defences of their case
Compel each party to state the material facts and particulars on which they are relying
Give the court a written record of the case
Assist in reaching an out of court settlement where appropriate.
The Supreme Court rules specify a time limit for pleading to be filed and sent to the other side. If a party fails to respond to the document in the specified time then the other party wins by defaults and risks facing certain consequences
What are direction hearings
A directions hearing is held in the court before a judge or an associate judge, where the court may give instructions for the conduct of proceedings.
At the directions hearing, the court may give any direction for the conduct of proceedings that it thinks will assist in an effective, complete, prompt, and economical determination of the case.
Most often hearings are used to set a timetable for future steps to be undertaken by the parties before trial.
It is at directions hearing that parties may be referred to mediation. It may result in an out of court settlement or narrowing of issues.
What is the purpose of direction hearings
Sets a time taken for future steps in the pre trial proceedings
Hears any applications made by parties before going to trial
Determine whether it is appropriate for the parties to be referred to mediation
Establish further orders in the procedures to ensure effective, complete, prompt and economical determination of the case
Allocate the date for trial
What is the notice of discovery
Discovery involves the opposing parties revealing an documents they may have that are relevant to the case.
Either party may request to disclose any relevance document.
It is important that parties find out any documents that may exist as it could mean that their case has little likelihood of success and it is not worth pursuing.
Documents include photos, maps, plans, video tapes, audio tapes, contracts, receipts and letters.
What is the purpose of discovery
Assist parties to prepare for trial
Narrow the issues in dispute
Facilitate settlement
Reduce the time and expense because documentary evidence has already been seen
Prevent either party being taken by surprise, so that the case is determined on merits not tactics.
What is an interrogatory
An interrogatory is a list of questions seeking further facts and can be sent to either party. Interrogatories are in written form and their are strict rules governing when they can be returned.
If plaintiff fails to return interrogatory, a default notice will be sent giving the plaintiff 7 days to respond. If the party fails to respond, the court may dismiss the case.
If defendant fails to respond after a default notice, defendants case will be struck out, meaning the defendant has no defence and the case will be in favour of the plaintiff based in judgement rather than merits.
Strengths of pre trial procedures
Pre trial procedures provide parties with various attempts to reach an out of court settlement
They allow parties to determine strengths and weaknesses of each other’s case
Allow parties to determine if it is worthwhile proceeding with their case
Provide court with information before the case begins, leading to a quicker trial
Might result in some issues being conceded by the parties thereby saving court time and trial
Weaknesses of pre trial procedures
Pre trial procedures are long and complex, adding to the delay of reaching a resolution
The cost of each procedure can often be high, particularly in the discovery stage
They often contribute to the stress and inconvenience experienced by parties, as they are lengthy and complex
They require the assistance of legal representation therefore disadvantaging u represented parties, or those who cannot afford legal representation.
The time taken means that the remedy is denied for longer. Justice is delayed therefore justice is denied.
Similarities of civil and criminal pre trial procedures
Attempt to make trial procedures as efficient and fair as possible by ensuring that parties have access to the same information and documents
Provide court with information about the case before it begins, thus reducing the court time in establishing key facts and issues about the case
Might result in some issues being conceded or charges being withdrawn before the trial begins
Differences of civil and criminal pre trial procedures
In a civil case, pre trial procedures are used to clarify issues and let each party know the other parties defence
In a criminal case, pre trial procedures are used to determine whether a Prima facile case exists, that is, if the evidence is of sufficient enough weight to support a criminal conviction.
What are damages
Damages are a sum of money granted to the plaintiff, to be paid by the defendant, in satisfaction of a claim made by the plaintiff. Different types of damages can be sought including, compensatory damages, exemplary damages, nominal damages and contemptuous damages.
