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Dispute Resolution > Trial > Flashcards

Trial Flashcards

1
Q

re: witnesses

what information should Ws be asked for/given?

A
  • Ws should be asked for dates to avoid and informed of the trial date asap
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2
Q

re: witnesses

when is W availability given to the court?

A
  • W availability is given on the DQ and in PTC
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3
Q

re: witnesses

when might a witness summons be used?

A
  • W can be summonsed to attend court/produce document(s) if they refuse; it is thought they won’t attend or they need evidence for their employer
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4
Q

re: witnesses

what is the procedure for summonsing a witness?

A
  • 2 copies of the summons must be sent to the court who will then serve 1 copy by 1st class post, unless the party specifically requests to serve it themselves
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5
Q

re: witnesses

is court permission required to summons a witness?

A

Court permission is not required to issue a summon unless they are seeking:
o To issue a summons less than 7 days before the hearing
o To issue a summons for any day which is not a trial date

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6
Q

re: witnesses

what is required for a summons to be effective?

A

For the summons to be effective, the party must offer the witness:
o A sum reasonably sufficient to cover their travel expenses; and
o Compensation for loss of time

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7
Q

re: witnesses

what happens if a witness has been summonsed and they fail to appear?

A
  • If W fails to appear they can be fined or, if in the HC, imprisoned for contempt
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8
Q

re: witnesses

can an expert be summonsed?

A

yes, but this is rare

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9
Q

re: witnesses

when might a summonsed witness make an application and on what basis?

A
  • W can make an application for a summons to be set aside if they cannot give any relevant evidence
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10
Q

re: witnesses

what is an unfavourable witness?

A
  • they do not perform as hoped but for proper reasons i.e. they have genuinely forgotten a fact
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11
Q

re: witnesses

what is a hostile witness?

A

they fail to come up to proof because they are unwilling to support the party who called them i.e. telling lies or refusing to answer

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12
Q

re: witnesses

what can a party do in relation to a hostile witness?

A

o Party can ask the judge to declare them a hostile W.
o Counsel must prove W has no desire to see justice done nor to give evidence fairly.

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13
Q

re: witnesses

what happens if the judge declares the witness hostile?

A

o If granted, counsel can then attack their credibility / cross examine them as if they are a W for the o/s (they cannot be examined about any pre-cons)

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14
Q

re: witnesses

what is the key to determine if a witness is hostile?

A

o They key is how inconsistent their w/s is against their oral evidence.

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15
Q

re: trial preparation

when is a pre-trial check list used?

A
  • Used in all tracks except small. Completed by parties.
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16
Q

re: trial preparation

what is a pre-trial check list also called?

A

a listing questionnaire

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17
Q

re: trial preparation

what is the purpose of the pre-trial checklist?

A
  • Purpose is to check directions have been complied with and case is trial ready. May include info like if an expert is not available on one day
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18
Q

re: trial preparation

when must the pre-trial check list be filed?

A
  • Must be filed no later than 8 weeks before the trial
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19
Q

re: trial preparation

what will the judge do on receipt of the pre-trial checklist?

A

Judge will review PTC and decide if a hearing is needed (called a listing hearing on fast-track and PTR in intermediate and multi-track)

they will also (either on paper or at a hearing):
o Give a timetable and set a timetable for trial if necessary
o Fix the place of the trial; and
o Confirm the trial date / state the week in which it will begin

20
Q

re: trial preparation

what happens if both parties fail to complete the pre-trial checklist?

A
  • If both parties fail to comply, the court will grant an unless order saying that unless the checklist is filed in 7 days the case will be struck out
21
Q

re: trial preparation

if the hearing is at least 10 days, what might the court do?

A

order a pre-trial review regardless of the PTC to check the progress of case

if so, the representative attending the hearing must be familiar with the case and have authority to deal with any issues that arise

22
Q

re: trial preparation

what are the bundle formalities?

A
  • This should be indexed, paginated and no longer than 250 pages
23
Q

re: trial preparation

who prepares the bundle?

A

C but it should be agreed with the o/s

C should provide incidental copies to the o/s and witnesses

24
Q

re: trial preparation

when is the bundle to be filed?

A
  • It must be filed between 3 – 7 days before the trial
25
Q

re: trial preparation

what documents must the bundle include?

A

key documents, such as:
o Statements of case
o Case summary / chronology where appropriate
o Requests for further information and responses
o Witness statements
o Notice of intention to rely on hearsay evidence
o Experts’ reports and responses
o Directions orders
o Any other necessary documents containing evidence that a party intends to rely on

  • NB: a Part 36 offer would not be included in the bundle because these are made on a WPSATC basis
26
Q

re: trial preparation

what is a case summary called in the high court?

A

skeleton argument

27
Q

re: trial preparation

what is the position regarding case summaries in multi-track cases?

A
  • In multi-track cases, each party should prepare a case summary.
28
Q

re: trial preparation

what information should the case summary include?

A

it should be concise and include:
o Submissions relation to each of the issues with reference to the evidence
o Propositions of law to be relied upon
o Identify key documents the judge should read before the hearing

29
Q

re: trial

generally, where are multi-track cases heard?

A
  • Generally, MT cases are heard by a CJ in the CC or by a HCJ in the HC
30
Q

re: trial

excluding multi-track cases, where are all other cases generally heard?

A

DJ in the CC

DJs can hear contested cases up to £25k. Permission from the designated CJ is needed to a DJ to hear cases above this limit.

31
Q

re: trial

explain the key court room etiquettes

A

o Counsel stand when speaking in open court. They can be seated when the hearing is in chambers or before a DJ
o C’s legal team on the right and D’s legal team on the left
o Ws addressed by title and surname (child Ws are addressed by first name)
o Phones off and no food to be consumed in court

32
Q

re: trial

what are the modes of address

A

o District Judge > Judge
o Circuit Judge > Your honour
o High Court Judge, Lord Justice, Supreme Court Justice > My Lord/Lady

33
Q

re: trial

when might a specific trial timetable be produced?

A
  • For complex cases lasting several days, a specific timetable may be produced
34
Q

re: trial

give a general overview of the order of play

A
  1. preliminary issues
  2. opening speech
  3. examination in chief
  4. cross-examination
  5. re-examination
  6. expert evidence
  7. closing speech
  8. judgment
  9. remedies and interest
  10. costs

Normally C’s evidence, cross-examination and re-examination (+any expert evidence) is done and then this is repeated for D

35
Q

re: trial

explain ‘preliminary issues’

A
  • Dealt with before the trial starts. May concern points of law but more commonly procedure i.e. permission to amend SOC (likely to fail as prior notice to the o/s is essential) or permission to adduce additional evidence
36
Q

re: trial

explain ‘opening speech’

A
  • C briefly sets out the background and facts in issue, if permitted by the judge
37
Q

re: trial

explain ‘examination in chief’

A
  • W asked to take an oath / affirm, identify w/s and confirm it is true. Every word is treated as have been said by W.
  • Normally no further questions. Permission is required to ask any questions (i.e. to clarify a point or give new evidence).
  • If permission is given for additional evidence, counsel can only ask open (/non-leading) questions (i.e. what did you see? What happened next)
38
Q

re: trial

what are examples of open/non-leading questions

A

what did you see? What happened next)

39
Q

re: trial

explain cross-examination

A
  • Witness cross-examined by o/s or their counsel.
  • Counsel should challenge W’s version of events, otherwise it is treated as accepting the evidence and try to discredit W
  • Counsel can ask closed/leading questions
40
Q

re: trial

what are closed questions? Why are they useful?

give examples

A

i.e. which require yes/no answers

This is a good way to control the witness i.e. ‘you didn’t have a clear view of D’s car, did you?’

41
Q

re: trial

explain re-examination

A
  • W may be re-examined by own counsel but only on points that have been raised in cross-examination, if this is necessary
  • Only open / non-leading questions can be asked
42
Q

re: trial

explain ‘expert witnesses’

A
  • If there is oral evidence, the court may hear C’s expert evidence now or may order the experts give evidence simultaneously on an issue-by-issue basis
43
Q

re: trial

explain ‘closing speeches’

A
  • D and then C will make a closing speech to summarise the law, facts and attempt to persuade the judge of their argument
44
Q

re: trial

explain judgment

A
  • Judgement delivered immediately or reserved to a later date if complex
  • Judgment takes effect on the day it is made, unless stated otherwise
45
Q

re: trial

explain remedies and interest

A
  • only relevant is C has won
  • Specified > total amount owed can be easily calculated
  • Unspecified > judge considers each category of damage to assess quantum
  • The judge will make a determination as to interest i.e. the rate and period
46
Q

re: trial

what is the general rule on costs?

A

loser pays winner’s costs but the court can depart from this

47
Q

re: trial

when should money awarded be paid?

A
  • All monies to be paid within 14 days unless order says otherwise

Dispute Resolution (13 decks)

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