Preparation of a case for trial, the trial and post-trial steps Flashcards
What is the general rule for the Court’s power to impose sanctions?
The court can impose sanctions by a court order.
The court may either:
* Impose a sanction immediately; or
* Make an unless order. An unless order is an order which provides for an automatic sanction in the event of non-compliance with the order. The unless order must specify the date and time within which the act must be done (CPR 2.9).
General rule on time and court’s power to impose sanctions?
the time specified by a CPR or court order for a party to do any act may be varied by the written agreement of the parties, unless a rule or practice direction provides otherwise or the court orders otherwise
What are the exceptions to the general rule on time and court’s power to impose sanctions?
However, by way of exception to this rule, where a rule, practice direction or court order :
(a) Requires a party to do something within a specified time, and
(b) Specifies the consequence for failure to comply,
the time for doing the act may not be extended by agreement between the parties except that the parties can agree an extension of time by prior written agreement (ie before the deadline is reached) for a maximum of 28 days provided that this does not put at risk any hearing date. This is unless the court orders otherwise.
Non-compliance with orders imposing sanctions
If a party fails to comply with a rule, practice direction or court order imposing a sanction, the sanction takes effect unless the party applies for and obtains relief from that sanction (CPR 3.8(1) and 3.9).
Relief from sanctions:
- strict approach
On an application for relief from sanctions, the court will consider all the circumstances of the case so as to enable it to deal justly with the application (CPR 3.9(1)).
The rules expressly require the court to consider the need:
* For litigation to be conducted efficiently and at proportionate cost.
* To enforce compliance with rules, practice directions and orders.
An application for relief must be supported by evidence.
What is the key case of Denton - seeking relief from sanctions
(a) Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then relief should be granted.
(b) If the breach is serious or significant, consider why the default occurred.
(c) Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly, but with particular weight to be given:
(1)(a) litigation must be conducted efficiently and at proportionate cost and
(1)(b) the court must enforce compliance with rules, practice directions and orders.
Special measures for vulnerable witnesses: (7)
- preventing a party or witness from seeing another party or witness by the use of screens;
- allowing a party or witness to give evidence remotely by video conference;
- hearing a party or witness’s evidence in private;
- dispensing with the wearing of wigs and gowns;
- admitting pre-recorded video evidence;
- questioning a party or witness through an intermediary; and
- using a device or other aid to help a party or witness communicate.
When can hearings in welsh be conducted in welsh?
on an ad hoc basis and without notice will continue to apply when all parties and witnesses directly involved at the time consent to the proceedings being so conducted.
If costs are incurred as a result of a party failing to comply with this direction to have the hearing in welsh, what made be made?
a costs Order may be made against that party or their legal representative.
For specified claims, the interest must be precisely calculated: (2)
- interest on lump sum for amount accrued since breach to date of issue of proceedings
- plus a daily rate to calculate going forward
How can the courts award interest on negligence cases?
And when is it normally awarded from?
usually use their discretion
when the loss was sustained
There are some instances where the burden of proof falls upon the defendant, specifically in relation to: (2)
- contributory negligence; and
- a failure by the claimant to mitigate its loss.
If the defendant alleges that the relevant limitation period for the claim has expired, what must be in the defence?
What then happens to the burden of proof normally?
Details must be given in defence
The burden of proof is then normally transferred to the claimant to show the claim is not time-barred.
