random points Flashcards
How does someone deal with entering a deposition as evidence in trial?
Notice of intention to put in evidence a
deposition must be served at least 21 days before the relevant hearing
the court has the power to prevent a party from relying on the deposition at trial
the court may require that individual in the deposition to attend court at trial as a witness
Interim payments
When both quantum and liability are in dispute, an interim payment is not likely
in the absence of an admission, a claimant must show that it would obtain judgment for a substantial amount of money to get an interim payment granted
a claimant may only obtain judgment against a
defendant and NOT a third party to the claim eg car pile up
Civil trial Witness statements - hearsay
When the hearsay is contained in the witness statement of a witness who will be called to give oral evidence at trial, then sufficient notice is given when the
witness statement is exchanged - NO NEED FOR AN EXTRA HEARSAY NOTICE, this is because the other side can already see what the hearsay evidence is when reading the WS
if one party does not attend trial, their WS cannot be used as their XIC at trial
in a civil trial, hearsay is never inadmissible just because its hearsay
Parties to a claim - intestate
where a party to the claim has died before it has been issued and has no representative, the court may either order to proceed in the absence of a person representing the estate of the deceased or order for a person to be appointed to represent the estate of the deceased
the claimant does not need to apply for a grant of administration
Claim form validity
the claim form is valid for 4 months, it has to be posted within this time frame BUT the deemed service does not have to fall within that 4 months
(validity is just before 12 midnight 4 calendar months after issue - this is when it needs to have been posted NOT DEEMED)
HOWEVER - in a arbitration claim the claim form must be served within 1 month from the date of issue
Disclosure under part 31
(i) An order for train of inquiry disclosure.
(ii) An order for standard disclosure.
(iii) An order for disclosure of paper documents to be followed by disclosure of electronic documents.
(iv) An order that each party disclose documents it relies upon and at the same time request any specific disclosure it requires from another party.
The order must specifically state what documents are still in their control, whether privilege is asserted and the documents or classes of documents they MUST disclose
Experts report formalities
While expert reports must contain a statement setting out the substance of the expert’s instructions, there is no requirement to append them
THE REPORT MUST CONTAIN A SUMMARY OF THE CONCLUSIONS REACHED
(1) An expert’s report must comply with the requirements set out in Practice Direction 35.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions –
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert,
unless it is satisfied that there are reasonable grounds that the report is inaccurate or incomplete
costs in civil proceedings
Proportionality trumps reasonableness on an assessment on the standard basis
costs following the event is a starting point
Earliest time to apply for a interim payments
The earliest time for applying for an interim payment is after the time for acknowledging service has expired (CPR, r. 25.6(1))
Earliest time to apply for a summary judgement
The earliest time for applying for summary judgment is after the defendant has either acknowledged service or filed a Defence
extending the time to serve claim form
CPR 7.6
applies for both part 8 and part 7 claim
test: the overriding objective, and the strength of the reasons for not being able to serve
(deal with it justly and consider the reasons and if it is of considerable importance)
Summoning a witness for trial/ during trial
Permission to issue a witness summons is required if it is less than 7 days before the trial
Permission to issue a witness summons is required in the circumstances provided by CPR r 34.3(2), which broadly cover situations where the witness is being required to attend otherwise than at trial, or where it is being issued late (less than 7 days before trial).
The witness summons must be served at least 7 days before the trial (r 34.5(1)). In the situation in the question issuing the witness summons is an administrative exercise, CPR, r 34.3, PD 34 para 1.2 requiring two copies to be filed with the court.
if a witness statement has been served, but that witness is not called by the party who initially was to rely on the oral evidence, the other party MAY rely on the evidence as HEARSAY and DOES NOT need to make an application to do so
seeking damage from another defendant
D1 can seek a contribution from D2 where they are both liable for the same damage
the unpaid part of the price can be counterclaimed by D1 against C under CPR R 20.4 and is usually done in the defence statement. if not, permission to amend will be needed from the court and an application must be made
A claimant may seek to add a 3rd defendant after an already named defendant seeks a contribution claim from a party not yet listed - but before that, the defendants cannot add people as defendants, just third parties to the claim by way of seeking contribution
a defendant in a counterclaim that wants to join the co-defendants in that counterclaim as the source of the money that they may owe to him - NEEDS PERMISSION OF THE COURT
ONCE CLAIM FORM HAS BEEN SERVED COURT PERMISSION IS ALWAYS NEEDED TO ADD OR SUBSTITUTE PARTIES
application for a summary judgement service days
service is required 14 days before the hearing rather than the usual 3 clear days
First class post results in deemed service on the second day after it was posted
how does a court of appeal look at the decision of a lower court?
the test for an appeal is:
to determine whether the lower court’s decision was wrong or unjust through some serious irregularity
The greatest respect is given to discretionary decisions and decisions based on the credibility of witnesses. These types of decision are best taken by the first instance judge, and the appeal court should be very slow to interfere with such decisions
An appeal court usually reviews the lower court’s decision. Greater respect is given by the appeal court to discretionary decisions than to inferences from primary fact
Striking out a claim
costs after strike out
A claim may be struck out on failure to file a statement of case within the time specified in an unless order.
A statement of case may be struck out if the court finds it discloses no reasonable grounds for bringing a claim.
a strike out is never ‘automatic’
if a judge makes a strike out, the party seeking costs will need to may obtain judgement with costs by filing a request with the court for the money
Standard basis of cost assessment
If all pre-action protocols have been followed and when the court has regard of all the circumstances including whether the parties have made a part 36 offer, the court will allow cost a proportionately and reasonably incurred or proportional and reasonable in amount
when deciding what order of costs to make, what 3 things does the court take into account?
The conduct of the parties
Whether a party has been partially or totally successful
Any offer of settlement made even if it’s not a part 36 offer
(this “conduct” is expanded upon to mean before and after proceedings and pre-action protocol)
DO NOT fall into the trap where an answer does not cover these 3 things fully, if one is omitted then the answer is tricking you - offers AND conduct AND success are the answer
appeals
Permission to appeal from a district judge’s decision has to be asked of to a circuit judge before 21 days after the judgement
the appeal will be by
way of a review of the decision (unless the Court considers that it would be in the interests of justice to hold a re-hearing).
Disclosure from external people to the claim
the court may order disclosure before proceedings have started and to a person who is not a party to proceedings - not always necessary to get a norwich pharmacal order
if the information is likely to support their case or adversely affect the case of the other party and disclosure is necessary to dispose fairly of the claim - court can order a person
default judgement against a child
A claimant who sues a child if there is
no litigation friend may not without the permission of the court take any step in
proceedings except the issue and service of the claim form. CPR 12.10. The
claimant must make an application in accordance with Part 23 to obtain
default judgment against a child.
THE ANSWER TO THIS IN THE EXAM WILL RELATE TO THE FACTS OF THE CASE = look at whether the default judgment was authorised by accident or lack of info
when does interest on the judgement sum?
from the date that the judgment was given, not from the date that it was served
security for costs
The court has discretion and will have regard to all the circumstances before issuing it so if a defendant cannot afford it the application will be dismissed. -whether or not it is just
Court will not jeopardise potential for the party to defend if a cost order would hinder that
PROPORTIONATE PROTECTION
what is a conditional order
Where a defence brought up in a summary judgement application is doubtful but cannot be ruled out
Gives the judge an opportunity not to dismiss the application for summary judgement immediately but also not to make a judgement based on the available information
means the judge doesnt want to make a decision just yet but its improbable that the defence will succeed
