SGS 7 (other than part 36)

Question 1

CONSENT ORDERS

Answer 1

If agreement is reached between parties –> usual for settlement to be recorded in consent order

• records settlement amount
• has effect of normal court order but court doesn’t need to hear arguments as it indicates agreed terms

Question 2

types of consent orders

Answer 2

1. ORDER WHICH IS BASED ON A CONTRACT: consent order just evidence of the contract (rarely interfered with by the court)
2. ORDER WHICH IS THE PARTIES AGREEING TERMS OF SETTLEMENT (not a contract) (may be altered or varied by the court

Question 3

TOMLIN ORDER (a type of consent order)

Answer 3

Depending on circumstances of the case, client might agree on:

ONE – a ‘standard’ consent order with the other party, or

TWO – a Tomlin Order (occasionally)

TO
- 2 parts (1st = public, 2nd = confidential and contains details of agreement reached between parties)

Question 4

when is tomlin order used

Answer 4

• Parties wish for key settlement terms to be confidential
• Agreed settlement terms go beyond that the court could order as part of the proceedings (this is why Tomlin Order contains its schedule – such schedule is not generally present in a ‘standard’ consent order)

Question 5

procedure for consent order

Answer 5

C drafts it

• Signed by both sides’ legal representatives, not the parties (unless a litigant in person)
• CPR 40.6(3), 40BPD3.4, 3.5
• Lodge consent order - court seals and approves it

Question 6

expected provisions in consent order

Answer 6

• payment of amount of money
• dismissal of proceedings (wholly/in part)
• stay of proceedings on agreed terms
• stay of enforcement of judgement
• discharge from liability

Question 7

if D doesn’t pay after settlement - what to do?

Answer 7

if proceedings issued

• lift stay
• enforce

if proceedings not issued

• contract to settle
• debt claim
• sue for breach of contract

Question 8

pre-trial checklist purpose

Answer 8

Form N170 (also known as Listings Questionnaire)

purpose:

• provides court with opportunity to check directions complied with
• case ready for trial?
• fix date for trial

Question 9

pre-trial checklist requires parties to

Answer 9

• Confirm whether they have complied with directions
• Specify any further directions required (+ enclose application form and draft order for those directions)
• Confirm whether court has already consented to expert evidence being given at trial (if not, order should be sought by way of application)
• Give details of experts (discussed reports? Have reports been agreed?)
• Give dates within trial period when experts are not available
• Give details of witnesses (availability? Special facilities required?
• Details of who will present the case at trial (and their availability within trial period)
• Estimate trial length (incl. cross examination, closing arguments, and attach proposed timetable for trial, preferably agreed)

Question 10

pre-trial checklist procedure

Answer 10

• sent to parties at least 14 days before due date for filing
• due date = at least 8 weeks prior to trial date or start of trial period
• parties encouraged to exchange copies before filing
• if neither files - court may make unless order (if not filed in 7 days, = strike out)

Question 11

procedure and pre-trial steps

Answer 11

1. pre-trial checklist
2. listing directions (or hearing to decide what directions are appropiate)
3. pre-trial review (instead of or addition to any hearing)
4. prepare trial bundles (C)
5. reading list (HC case) incl. estimate of reading time judge likely to require
6. Skeleton argument by counsel usually (HC case) - summarises submissions
7. submit list of authorities (by 5pm day before hearing) (HC cases)
8. prepare case summary (non-contentious and short)
9. consider settlement (if settle, notify court immediately)
10. serve notice to admit facts/documents (no later than 21 days before trial)
11. brief to counsel
12. secure attendance of witness and experts

Question 12

trial bundles

Answer 12

includes all docs likely to be referred to at trial (39A pd 3.2)

C must file it at court no more than 7 days and no less than 3 days before trial begin

• identical bundles to each party and one for witnesses
• content should be agreed where possible
• if disagreement, summary of points in dispute to be included
• usually agree a ‘core’ bundle

Question 13

Counsel - overview details

Answer 13

If appropriate to use counsel, he/she is sent:

“Brief” = if barrister is to appear in court

“Instructions” = if barrister just asked to give an opinion on a case (advise on specific aspect of case)

(Remember to head front sheet properly with ‘brief’ (speaking at court) or ‘instructions’ (just a meeting))

Question 14

“Brief” to counsel

Answer 14

‘Brief’ usually sent with full set of trial documents (i.e. copy of trial bundle)

• In complex cases = counsel normally involved throughout the case so brief doesn’t need to be detailed
• Smaller less complex cases = brief will need to summarise whole case to date to enable counsel to prepare fully for trial (good instructions = gives background on the case)

- Information generally includes: 
Who you are 
For whom you act
Who your client’s dispute or potential dispute is with (and the nature of it)
Brief background
Relevant deadlines

Question 15

payment to counsel

Answer 15

brief fee = agreed with counsel’s clerk (covers prep and 1st day)

refresher = subsequent days of trial paid by agreed fee per day

staged payments in larger cases

(brief fee /staged payments already due NOT refundable if case settles after brief delivered so parties usually settle BEFORE delivery of brief)

Question 16

secure attendance of witnesses/experts

Answer 16

Reluctant witnesses or expert witnesses with other commitments (e.g. NHS consultants) may be compelled to attend trial by serving them with a witness summons (Form N20)

Witness summon may require witness to attend to give oral evidence or produce specified documents or both

Question 17

trial

Answer 17

1. opening speech by C’s advocate
2. C’s case (evidence)
3. D’s case (evidence)
4. Closing speeches
5. Judgement (usually immediately)
6. costs submissions
7. costs order

Question 18

OPENING SPEECH BY C’S ADVOCATE

Answer 18

Describes nature of claim,

Identifies issues to be tried by reference to statements of the case, statement of issues, and key documents

Judge might decide there is no need for opening speech if it has read trial bundle (smaller matters) or key documents in reading list (larger matters) before the trial and dispense of this – 29 PD 10.2

Question 19

C’S CASE – EVIDENCE CALLED ON BEHALF OF C

Answer 19

CPR 32.5(2) – witness statement stands as evidence-in-chief unless court orders otherwise

D’s counsel may cross-examine witnesses (this can be conducted using leading questions – i.e. questions suggesting a particular answer)

Counsel for C may re-examine witness on matters covered in cross-examination (NO LEADING QUESTIONS allowed in re-examination)

Question 20

D’S CASE – EVIDENCE CALLED ON BEHALF OF D

Answer 20

(may be preceded by D’s opening speech in larger cases)

WS generally stands as evidence-in-chief

C’s counsel can then cross-examine the witness

D’s counsel may then re-examine on matters covered in cross-examination

Question 21

CLOSING SPEECHES

Answer 21

D’s counsel first, then C’s counsel
Both sides make speeches which:

• Refers to evidence adduced
• Notes any inferences to be drawn from that evidence
• Note how this supports C/D

Question 22

JUDGEMENT

Answer 22

• interest runs from date judgement is given
• judgement effective on date it is given not date it is served
• judge sometimes reserves judgement, circulates draft, then gives it and serves it later on

Question 23

costs

Answer 23

costs payable?
basis of assessment? if detailed assessment
amount?

Question 24

costs payable

Answer 24

Effect of: COSTS MANAGEMENT ORDER (CPR 3.15))

CPR 3.18 – if costs management order has been made, when assessing costs on standard basis, the court will:

• Have regard to receiving party’s last approved or agreed budget
• And not depart from such approved/agreed budget unless there is a good reason to do so

Question 25

when are costs payable

Answer 25

within 14 days of the order/certificate unless later date specified by court or an order is made for a payment on account of costs in accordance with CPR 44.2(8)

Question 26

procedure for assessment

Answer 26

1. Receiving party serves notice of commencement and a copy of its bill of costs on the paying party
2. Points of dispute re: bill of costs served on receiving party by paying party
3. Receiving party may serve on paying party points of dispute
4. Receiving party should file request for detailed assessment hearing
5. Following the detailed assessment hearing, a final costs certificate is issued

if parties agree costs - either party can make app to court for costs certificate in sum agreed

Question 27

impact of lit on business

Answer 27

• reputation
• costs
• time (onerous and time consuming disclosure process and instructing solicitors - could have been chasing business contracts)

Question 28

how to minimise impact of lit

Answer 28

• ADR
• mediation
• conduct yourself well in proceedings
• tactics

Question 29

when claims settled - what options are there?

Answer 29

1. stay (proceedings suspended until time court may direct)
2. dismissal (best for D) - no auto cost consequences (parties decide costs in consent order), C cannot bring fresh proceedings
3. discontinuance - presumed C pays D costs (in terms of settlement) but parties can agree differently, could still bring new proceedings if court agrees
4. judgement/consent order (by order to pay sum immediatly or by instalments)