Session 3 Flashcards
What is disclosure?
this is telling the other party that a document exists or has existed
Inspection is the other side inspecting that document
what is standard disclosure?
This requires a party to disclose a document which is or was in their control.
3 stage test
1) is it a document?
2) is/was it in the party’s control
3) does it fall within CPR 31.6:
a) the document on which he relies; and
b) the document which-
i) adversely affect his own case;
ii) adversely affects another party’s case; or
iii) support another parties case; and
c) the documents which he is required to disclose by the relevant practice direction.
The party must carry out a reasonable search.
Then they are required to list these documents and served on the court and the other side.
What is inspection?
A party has a right to inspect a disclosed document except where:
1) no longer in control
2) disproportionate
3) right/duty to withhold inspection (eg privilege)
What are the three types of privilege?
1) legal advice privilege- confidential communication between a lawyer and a client
2) litigation privilege- passed between lawyer and his client or between one of them and a third party where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was the time reasonably in prospect
3) without prejudice privilege- a document whose purpose is a genuine attempt to settle a dispute.
What are witness statements?
This is oral evidence at trial. Their is three ways of conveying this evidence:
1) evidence in chief-
2) cross examination
3) re-examination
The procedure for this is that the claimant should serve a witness statement in advance of the trial on the date ordered by the court. This is then stated as the evidence in chief.
Witness should not give opinions.
Witness evidence must be verified by a statement of truth.
Witness statements are also used in interim applications- explain why the evidence should be granted. No oral evidence is then needed at the hearing of the interim application
What about expert evidence?
they assist with matters which is relevant to the dispute.
You need the courts permission to adduce evidence at trial from an expert.
Expert evidence is restricted to that which is ‘reasonably required’ to resolve proceedings.
The court could give directions for a single joint expert between the two parties and then they create a report.
Separate experts may be beneficial for giving a range of opinions
In some cases, after receiving an expert report can ask questions of the expert, have a meeting of the experts or even the court to give permission to give oral evidence at trial
The experts overriding duty is to the court.
What considerations are there for jurisdictional cases?
1) do the courts of England and Wales have jurisdiction to determine the claim?
2) which country’s laws will apply to determine a dispute
3) will it be necessary to enforce judgement abroad and how will this be done
When is jurisdiction established?
1) if the defendant is present within the jurisdiction- no permission needed
2) jurisdiction agreed under contract
3) permission to serve outside the jurisdiction (do you need permission?)-
Permission not needed where:
D submits to or agrees jurisdiction or there is a jurisdiction clause and/or the hague convention applies.
If there do not apply, then you must seek permission (via application).
The serving party must establish a gateway:
1) contract and tort (if met)
2) D has domiciles within Eng and Wales
3) claim for injunction
4) D is the necessary and proper party
Always provided that the claim has reasonable prospects of success and England and Wales is the ‘proper place’ to bring the claim.
What is the hague convention?
the 6 steps which means permission not needed:
1) is the matter a civil or commercial matter
2) it is an excluded matter?
3) does the clause give jurisdiction to a contracting state?
4) is jurisdiction given exclusively
5) is the agreement concluded/documented/evidenced in writing?
6) is the agreement an ‘asymmetric’ one
How do you dispute the courts jurisdiction?
defendant must:
1) file an acknowledgement of service
2) tick the box to indicate that the defendant intends to contest jurisdiction
3) the defendant must then apply within 14 days after filing the acknowledgement of service, disputing the courts jurisdiction. That application must be supported by evidence
What is the Rome 1 procedure?
Applies to contractual disputes
1 Have the parties chosen which law should apply?
if yes- that county
if no
2) does the contract relate to one of the cases specified in Articles 4(1)(a) to (h)?
If yes- those articles apply
If no- the applicable law is that of the country where the “characteristic performer” has its habitual residence
However, if that does not work- is the contract “manifestly more closely connected” with another country-
What about rome 2? tort claims
1) have the parties validly chosen which law should apply?
if yes- that country
if no- do the claimant and defendant habitually reside in the same country?
If yes- that country laws
if no- apply the law of the country in which the damage occurs
Again, if this does not work- tort ‘manifestly more closely connected’ with another county
What are the methods of enforcement?
to investigate:
1) enquiry agent
2) company searches
3) registers
Order to obtain information from a judgement debtor-
1) only after judgement
2) debtor/officer attends court
3) standard list of questions, can be added to, and must produce documents
Methods:
1) taking control of good- sell them to satisfy debt. Cannot seize basic domestic items/tools of the trade
2) attachments of earning order- deduction from judgement debtors
3) charging order- taking over land or assets. makes no money immediately but when the land is sold. It is possible to apply for an order for sale.
4) Third party debt order- third party must pay the debt- eg if someone owes the debtor money, it is paid directly to the creditor.
5) insolvency proceedings.
Can the decision be appealed?
can be in relation to interim applications or the trial.
No automatic right for appeal- permission will be needed.
2 ways of seeking permission:
1) apply for permission from the lower court at the time when the decision to be appealed is made- done orally
OR
2) make the application to the appeal court later- done in writing. Within 21 days of the date of the lower court’s decision.
Permission will only be granted where:
1) the appeal would have a real prospect of success; or
2) there is some other compelling reason why the appeal should be heard
What is the procedure for an appeal?
Permission granted by lower court?
if yes- file appellants notice within period specified by the court, indicating permission already granted. Appeal proceeds to a towards a determination
If no- file appellants notice within 21 days of decision, including requesting permission. Permission is then usually considered on papers. If refused on papers in CC/HC- usually a right to a hearing re permission (if still no permission, appeal cannot proceed).If permission is then granted- appeal proceeds to a towards a determination
When will an appeal be allowed?
only allowed if:
1) wrong (error of fact, error of law, error in the exercise of discretion)
2) unjust (procedural or other irregularity)
No new evidence or live witnesses
