Trial Flashcards
What is the purpose of a pre-trial checklist (AKA listing questionnaire)?
Form N170
- Check case management directions have been complied with (so case ready for trial)
- Give any further directions
- Fix a date for trial (or confirm date already fixed)
How is the deadline for the pre-trial checklist given?
Standard direction given by court in fast and multi-track cases
What does pre-trial checklist require of the parties?
- Confirm/disclose (non-)compliance with directions
- Specify further directions needed
- Confirm whether court has already consented to expert evidence (request if not)
- Details of experts and if they have agreed
- Details of witnesses (availability/special facilities)
- Who will present the case at trial
- Estimate of trial length (preferably agreed)
When will the pre-trial checklist be sent to each party and when will it be due?
- Sent to parties at least 14 days before due date of filing
- Due date will be at least 8 weeks prior to trial date/start of trial period
What should the parties do with their copies of the pre-trial checklists before filing?
Exchange copies to avoid court being given conflicting information
What happens after pre-trial checklist is filed?
Court gives listing directions - further directions needed to get matter listed for trial
Are listing directions given at a hearing?
Might be given at a pre-trial review - where court checks that parties have complied with all previous directions
What must court give in listing directions?
- Fixed date of trial
- Time estimate for trial
- Place of trial
What might court give in listing directions?
- Evidence (i.e. experts)
- Trial timetable
- Preparation of trial bundles
- Other matters
What is the purpose of the trial bundle and what kind of documents should be included?
Ensure all relevant material before court and judge can identify pre-trial reading - should include all documents likely to be referred to
- Claim form/statements of case
- Case summary
- Requests for further information
- All witness statements relied on
- Any hearsay notices
- Any notices of intention to rely on evidence not contained in witness statement or expert’s report, being given orally at trial, or hearsay evidence
- Any medical reports
- Any expert’s reports
Who prepares the trial bundle and when must it be filed?
C prepares and must file trial bundle with court no more than 7 days and no less than 3 days before trial begins
E.g. trial on Wed 15
Earliest = Tues 7
Latest = Thurs 9
E
Who does C supply identical bundles to?
Each party in proceeding, the judge, and witnesses
What happens with information that parties disagree on in bundle?
Summary of points in dispute to be included
What is a reading list? Who signs it?
- An estimate of reading time for judge to get to know the case and estimate of hearing length - should be lodged with trial bundles
- Signed by all advocates
In what cases must a reading list be submitted?
High Court cases in the Chancery and King’s Bench Division
What does the skeleton argument do and for what trials must it be prepared?
Summarises submissions to be made and cites authorities to be relied on - prepared for High Court trials
When must a list of authorities be submitted and when by?
In High Court cases - submitted to court by 5pm the day before the hearing
If the parties settle at pre-trial, who must they let know and when? What happens otherwise?
Listing officer for trial court must be notified immediately (or face cost penalties)
To enable court to allocate time to other cases
What does a notice to admit facts do?
Formally asks the other party to admit particular factual point in issue in the case
If other party accepts - won’t have to call evidence to prove at trial
Will have already served evidence/had dialogue supporting point
What happens for the recipient of a notice to admit fact if they do not admit?
Judge decides at trial whether fact correct, if so then party receiving notice is vulnerable (should have agreed fact earlier and avoided time-wasting)
Cost consequences
When will a notice to admit documents be used?
Where a party serves notice that they wish (the authenticity of) a document to be proved at trial
What is the brief to counsel?
Full set of trial documents sent to counsel appearing on client’s behalf
Less likely in complex multi-track cases - counsel will have usually been involved throughout case
What is the difference between the brief fee and the refresher?
- Brief fee = covers preparation for and first day of trial
- Refresher = subsequent days of trial where agreed fee per day is paid
Usual to have staged payments in larger cases and written agreements as to what precisely is included in the brief (e.g. weekend working or closing submissions).
Is the brief fee refundable if a case settles after the brief is delivered?
Not unless parties have agreed
How are reluctant (expert) witnesses compelled to attend trial?
By serving a witness summons (N20) to give oral evidence/produced specified documents
What court etiquette should be followed during trial/hearing?
- Legal rep should (sometimes) stand when speaking and sit when not
- Legal reps address court indirectly (e.g. has your honour [not have you] received my skeleton argument?)
- Opponent referred to as ‘my learned friend’ (barrister) or ‘my friend’ (solicitor)
- Everybody must stand when judge enters/leaves courtroom
- An advocate should not indicate what they ‘think’ - should only use submissions ‘it is sumbbited/I submit’
- Legal rep should not approach the bench without permission
What does a legal representative do if they speak first?
By way of introduction
- Introduce opponent by name and state party they represent
- Introduce themselves by identifying the party they represent (without stating their own name)
What is the order of events in a civil trial?
- Claimant’s opening speech
- Claimant’s case (EIC, XE, RE)
- Defendant’s case (EIC, XE, RE)
- Defendant’s closing speech
- Claimant’s closing speech
Will a claimant always give an opening speech?
May not be needed in smaller cases
What does the claimant say in their opening speech?
Nature of claim and identifies issues to be tried by reference to statements of case, statements of issue and key documents
Judge will generally have read key documents in a trial bundle
What is the difference between leading and non-leading questions?
Leading = Qs suggest particular answer (“so you breached the contract by failing to deliver…?”
Non-leading = not that (“when were the goods delivered?”
When can leading and non-leading questions be used?
Cross-examination can be conducted using leading questions, re-examination cannot
What stands as evidence-in-chief of a witness?
Their witness statement
What will the parties refer to in their closing speeches?
Their evidence, inferences to be drawn, and how it supports their case
What does a judgement/final order do?
- Ends the claim
- Make provision for costs
Will judgements/final orders only ever be made after the trial/final hearing?
No - can also be default and summary judgements
Will a judgement always be handed down immediately following trial?
No - may be reserved in complex cases
Delivered at later date
Where a judgement is reserved, what can the judge usually get the parties to do?
- Get parties’ views on how judgement should be handed down
- Will circulate judgement in draft to parties in advance of formally handing down (parties prepare cost submissions and fix obvious errors)
When must a judge circulate the judgement in draft to parties?
By 4pm on the second working day before handing down
Will a judgement be a public document before it is handed down?
No
What will parties do before judge makes a costs order?
Submit costs submissions
What is a split trial?
Where court decides to:
1. Hold a trial to decide who is to blame
2. Hold a further trial to assess the level of damages (a disposal hearing)
When will a split trial be allowed?
Where evidence on liability is different to evidence on quantum and it furthers the OO to hold 2 separate hearings
What does ‘drawing up’ an order mean?
Setting order out in formal document (to be sealed by court)
When will an order not be drawn up by the court?
- A party is ordered/agrees to draw it up
- The court dispenses with need to draw it up
- It is a consent order (drawn up by parties)
If a party is required to drawn up an order, when should they file it?
And what happens if they fail?
No later than 7 days after becoming responsible for doing so
Another party can do it if they fail to
Must also file sufficient copies for service on themselves and other parties at same time
Is a judgement or order effective from date it is given/made or served?
Given/made
From when does interest start to run on amount of judgement if it is included as part of claim?
From date on which judgement given
At 8% per annum
How long do parties have to comply with judgement or order for payment for amount of money?
14 days from date of order
What is a stay of execution of judgement/order and when would court allow it?
- Stay of execution = more time to pay/take steps ordered before enforcement possible
- Would be allowed on grounds of matters which have since occurred from date of judgement or order on application by party against whom judgement made (e.g. pending appeal against judgement or order)
What does the Debt Respite Scheme allow who to get?
Allows individual debtor (not company) to ask for breathing space of 60 days on basis they are unlikely to be able to repay debts
What must the judgement creditor do during the breathing space period?
- Stop enforcement action to recover debt
- Stop any interest, fees, penalties or charges for debt
- Not contact debtor requesting payment
Are all types of claim included in the scheme?
No - judgement for damages fro death/PI caused to someone else is excluded
What is the general rule governing whether costs are payable by one party to another?
‘Costs follow the event’ = loser pays
Court has complete discretion
