Trial and appeals Flashcards
Pre-trial checklist?
A standard direction given by court on allocation for fast track and multi-track cases is a deadline by which a pre-trial checklist N170 is to be filed.
- Provides opportunity for court to check
- That the case management directions have been complied with
- Give any further directions
- Fix a date for trial
The checklist requires the parties to
- Confirm whether they have complied with the directions given
- To specify any further directions required to prepare the case for trial and enclose application form
- To confirm whether the court has already consented to expert evidence being given at trial
- To give details of experts and whether the reports have been agreed
- To give details of dates within the trial period when experts will not be available
- To give details of witnesses and their availabilities
- To estimate trial length
The checklist is sent to parties at least 14 days before the due date for filing. Due date will be at least 8 weeks prior to the trial date.
Once the pre-trial checklist has been filed the court will give any further directions needed to get matter listed for trial.
Guidance the court MUST give on listing includes #? May give on listing?
Guidance the court must give on listing includes PD29
- Court will fix a trial date
- Court will give a time estimate for trial
- Court will fix the place of trial
MAY gives on listing
- Evidence
- Trial timetable
- Preparation for trial bundles
Preparation for trial? Trial bundle?
CLAIMANTS RESPONSIBILITY TO PRODUCE THE TRIAL BUNDLE.
MUST INCLUDE ALL DOCUMENTATION RELIED ON BY BOTH PARTIES
Ensure all relevant material is before the court at trial so its proceeds expeditiously.
- Assists advocates to prepare for present their cases effectively
- All documents likely to be referred to at trial should be placed into paginated and indexed files CPR 39 and 32
- Should include a copy of:
- Claim from and all statements of case
- Case summary
- Requests for further information
- All witness statements
- Any witness summaries
- Any hearsay notices
- Any notices of intention to rely on evidence which is not contained in a witness statement, being given orally
- Any medical reports
- Any other necessary documents
Preparation for trial other items?
Reading list
- Set out an estimate of the reading time the judge is likely to require to get to know the case and the relevant authorities properly.
Skeleton argument
- Must be prepared for high court trials, concising summarisng submissions to be made and citing authorities to be relied upon.
Authorities
- A list of authorities must be submitted to the court by 5pm the day before the hearing.
Case summary
- Generally agreed, non -contentious summary
Settlement
- Many cases settle in this time
Notices to admit facts
- Relate to evidence CPR 32.18 AND 32.19
- Purpose of a notice to admit facts is to formally ask the other party to admit a particular factual point that is in issue in the case. You are hoping that the other party will agree to admit the point and you will not have to call any evidence to prove it
- The judge will decide whether the fact is correct or not. If the judge agrees that it was correct, the party receiving the notice is vulnerable as they ought to have agreed the fact when given the chance earlier and avoided wasting time at the trial. Therefore, they are likely to face cost consequences and not be treated as favourably when the court exercises its discretion on costs at the end of the case.
- Notices to admit documents work along similar principles. The underlying point is that a party is deemed to admit the authenticity of documents disclosed to them unless they serve notice that they wish the document to be proved at trial (CPR 31).
Brief to counsel
- Counsel will usually be involved throughout in multitrack cases.
- In smaller less complex cases – the brief will need to summaries the whole case to enable counsel to be fully prepares.
Secure attendance of witnesses and experts
- May be compelled to attend a trial by issuing and serving on them a witness summons in from N20 CPR 34.2
TRial? Court room etiquette?
- In some context should stand and sit when not speaking
- Should avoid addressing court directly so say ‘has your honour received my skeleton argument’
- An opponent’s representative is referred to as my learned friend or my friend if solicitor
- When judge leaves or enters everyone must stand
- If speaking first in court, a legal rep should introduce opponents by nae and state the party they represent, they should introduce themselves by identifying the party they represented without stating their own name
- Advocate should NEVER indicate what they think – submissions should be advanced – ‘I submitted’
- A legal rep should not approach the bench without permission
Trial strcuture?
Claimants opening speech
Claimants case
- Evidence in chief, cross examination and re examination
Defendants case
Defendants closing speech
Claimants closing speech
Orders?
Judgements and final orders
- A judgement or a final order is one that ends the claim
- Will also make provision for costs
Judgement after trial/final hearing
- Judgement may be handed down by judge immediately following trial
- If matter is complicated judgement will be reserved and handed at a later date. Judge will usually circulate the judgement in draft to parties in advance of formally handing it down by 4pm on the second working day before handing down.
- After a judgement is given the parties will make appropriate costs submissions and the judge ill make a cost order
Disposal hearing
- May be appropriate to hold a split trial. Means court decides to first hold a trial to decide who is to blame and then a further trial to assess level of damages. This one is called the disposal hearing.
Drawing up service
- Order will be drawn up by court unless court orders a party to draw it up
- If a party is doing it, they may be required to do it no later than 7 days after becoming responsible for doing so
- Also file sufficient copies for service on themselves and other parties
When a judgement takes effect?
- Effective from date its given, not served CPR 40.7
- Judgments will usually include an amount of interest which was awarded as part of the claim. Once judgment has been given and the claim is concluded, interest starts to run on the amount of the judgment debt from the date on which the judgment is given (CPR 40.8). The rate of interest on judgment debts is set at 8% per annum under section 17 Judgments Act 1838 (as amended).
- The parties have a time limit of 14 days in which to comply with a judgment or order for the payment of an amount of money, unless otherwise specified by the court (CPR 40.11). This means that payment of the judgment debt will be due within 14 days from the date of the order, plus the interest which will have been running during that time post judgment.
Debt respite scheme?
- Scheme allows an individual debtor not a company to approach a debt advice provider to ask for breathing space of 60 days on the basis that they are unlikely to be able to pay their debt. If considered appropriate they can start the breathing space
- During the breathing space, the judgement creditor must stop all enforcement action, any interest fees or penalties for debt and not contract the debtor requesting payment.
- Any judgement for damages for death or personal injury caused to someone else is excluded from the scheme
Enforcement?
Judgement is not necessarily the end of the matter
- Losing party still need to pay, if they fail to do so voluntarily then enforcement proceedings are steps taken by successful party to obtain payment.
Judgement debtor – owes money
Judgement creditor = wants the money
Investigating the opponents means
- One of the first considerations, is whether prospective defendant can pay
- Instruct enquiry agents
- Company searches
- After proceedings – judgement creditor can apply to court
Order to obtain information from the judgement debtor
- Once a judgement has been obtained - it’s possible to involve the court in obtaining information directly from the judgment debtor about their assets.
- Can apply to court for an order requiring the judgment debtor to attend court to provide information needed answer questions under oath. If don’t attend they may be held in contempt of court. Produce documents detailing this.
- Separate forms if application is to question an individual judgement debtor (FORM N316) OR IF ITS AN OFFICER OF THE COMPANY (N316
nless the court orders otherwise, the order to attend court must be served personally on the
person ordered to attend court not less than 14 days before the hearing (CPR 71.3(1)).
The judgment debtor must then attend court and produce any documents referred to in the order,
and answer any questions asked of them on oath (CPR 71.2(6)). Standard questions are contained
in questionnaires (available in the online version of the CPR) for use at such hearings.
Enforcement methods?
Writs / warrants of control (see Taking Control of Goods below);
* Third party debt orders;
* Charging orders; and
* Attachment of earnings orders.
Some methods of enforcement are only available in one particular court (ie the County Court or
the High Court) so you may need to have the proceedings transferred to a different court for the
purposes of enforcement.
Example: Introduction to choosing the correct court (i)
Attachment of earnings orders are only available in the County Court. If a claimant had a High
Court judgment which it wished to enforce by this method, it would need to apply to transfer the
proceedings to the County Court for the purposes of enforcement.
Investigating the debtors means?
conducted a company search;
- Company’s general solvency, assets and whether they’re charged.
* applied for official copies from the Land Registry;
* searched against other relevant registers; and / or
* instructed an enquiry agent to report.
- essentially private investigators.
These investigations will need to be updated or repeated at the end of the action, post judgment,
in order to work out the most effective likely method of enforcement.
he Register of Judgments, Orders and Fines
All County Court judgments from April 1990 onwards are entered on this register and remain
registered for six years. If the judgment is satisfied within one month, the entry may be cancelled
at the judgment debtor’s reques
Enforcement in other jurisdictions?
If the judgment debtor has assets which are abroad it may be necessary or desirable to take steps
to enforce a judgment of the English court (obtained against the debtor in English proceedings) in
a foreign jurisdiction.
If the judgment creditor has a judgment from a foreign court to enforce against assets here it will
be necessary to use the English courts to facilitate this
Procedure
Uk is part of treaties so enforcement of judgements abroad - usually based on system of arrangement
his means, for example, that the Hague Convention applies to the
enforcement of English and Welsh judgments in EU states, but only where the English court had
jurisdiction under an exclusive choice of court agreement.
Common law - where no relevant regime applies - position is governed by common law. NEED TO SEEK ADVICE FROM LOCAL LAWYER.
IF ENFORCING A FOREIGN JUDGEMENT IN ENGLAND AND WALES - GET A JUDGEMENT FROM ENGLISH COURTS. treat foreign judgement as debt and issuing proceedings for non-payment of that debt and then applying for summary judgement.
For enforcement in foreign countries of a High Court or County Court judgment, firstly, the
judgment creditor must apply for a certified copy of the judgment (CPR 74.12). The application
may be made without notice. The application must be supported by written evidence (CPR 74.13)
exhibiting the claim form, statements of case and the evidence that was served on the defendant.
Methods of enforcement? Taking control of goods?
Enforcement officer sizes goods
Selles them
Uses proceeds to satisfy debt
Cannot seize if someone other than judgement debtor owns has an interest in them
Basic domestic items and tools of trade are exempt
Attachment earnings order?
Court order judgement debtors employer to pay make the appropriate deduction from debtors earnings and pay it to court for onwards transmission
