Unit 6

Question 1

Where should details of witness availability be given?

Answer 1

Pre-trial checklist & directions questionnaire.

Question 2

Where there is doubt as to whether a witness will turn up, what should be sought?

Answer 2

witness summons

Question 3

What is a witness summons?

Answer 3

Document issued by court requiring witness to:

– attend court ; or
– Produce documents to court

Question 4

What are the formalities for witness summons?

Answer 4

Formalities:

1) Witness summons should be served at least 7 days before the date on which the witness is required to attend court. If it is not, court’s permission is required.

2) Witness summons is binding and if they fail to appear, the witness may be fined / in high court proceedings, imprisoned for contempt of court.

3) Summons served by the court. The witness must be offered or paid:

(a) A sum reasonably sufficient to cover their expenses in travelling to and from the court; and

(b) Compensation for loss of time (specified by Part 34).

Advantage of serving summons = judge more likely to adjourn the trial if the witness fails to attend.

Question 5

For fast track and multi track, when does the pre-trial checklist be filed?

Answer 5

Latest 8 weeks before the trial date or the start of the trial period.

Question 6

Pre-trial checklists / reviews summary –

Answer 6

a) Purpose: To ensure the parties have complied with all the directions and the trial is ready to proceed

b) Timing: The completed pre-trial checklist must be filed at court no later than 8 weeks before the trial date.

c) Role: Judge reviews the checklists to decide whether further directions are needed and whether a review hearing is necessary before trial. This is called listing a hearing on the fast track and a pre-trial review on the multi-track.

d) Failure to comply: if neither party comply, the court will order that unless a completed checklist is filed within 7 days, the claim, defence and counterclaim will be struck out; if only one party does, the court will fix a hearing to ensure the case is ready for trial.

Question 7

What is the effect of failure to comply with pre-trial checklist submission?

Answer 7

if neither party comply, the court will order that unless a completed checklist is filed within 7 days, the claim, defence and counterclaim will be struck out; if only one party does, the court will fix a hearing to ensure the case is ready for trial.

Question 8

When is a pre-trial review ordered and what is its purpose?

Answer 8

– Ordered for a trial likely to last longer than 10 days.

– Parties’ representatives expected to attend to assist in ironing out any last-minute glitches before the case is listed, so the court’s resources are not wasted.

– To ensure that decisions can be made, the representative must be familiar with the case and have the authority to deal with any issues that may arise.

Question 9

Whose responsibility is it to prepare and file the trial bundle?

Answer 9

CLAIMANTS.

Question 10

When should the trial bundle be filed?

Answer 10

Between 7 and 3 days before the start of the trial.

Question 11

Should the claimant supply identical copies to all other parties to the claim and for use by witnesses when filing the trial bundle?

Answer 11

Yes.

Question 12

What documents should the trial bundle contain?

Answer 12

• Claim form / statements of case
• Case summary and/or chronology where appropriate;
• Requests for further information and responses;
• Witness statements;
• Notices of intention to rely on hearsay evidence;
• Experts’ reports and responses;
• Directions orders; and
• Any other necessary documents containing evidence that a party intends to rely on.

Question 13

How should the trial bundle be prepared?

Answer 13

– Bundle should not be more than 250 pages & should be indexed and paginated.

Question 14

When should a case summary be prepared?

Answer 14

In multi-track cases, each party should prepare a case summary for use at trial.

Case summary will concisely:

(a) Review the party’s submissions of fact in relation to each of the issues with reference to the evidence;

(b) Set out any propositions of law to be relied upon; and

(c) Identify any key documents that the trial judge should, if possible, read before the trial starts.

Question 15

What are the relevant modes of address in the court room?

Answer 15

1) County Court
– Circuit judge = Your Honour
– District judge = Judge

2) High Court
– Judge = My Lord / Lady
– District Judge = Judge

3) Court of Appeal
Lord Justice = My Lord / My Lady

4) Supreme Court
Supreme Court Justice = My Lord / Lady

Question 16

What is the order of events for fast-track trials?

Answer 16

1) Preliminary issues
2) opening speeches
3) Examination in chief
4) Cross-examination
5) Re-examination
6) Closing speeches
7) Judgements

Question 17

What is the distinction between hostile / unfavourable witnesses?

Answer 17

Unfavourable = Does not perform as anticipated for proper reasons (e.g., forgetfulness).

Hostile = Refuse to answer/tell lies out of spite. Effect is that the advocate may cross-examine them as though they were a witness for the other side.

– The solicitor should make an application to the court for the witness to be declared hostile.

– If they are declared hostile, they can cross-examine the witness on the facts of the case and on their previous inconsistent witness statement that is in the trial bundle.

Note – The witness’s general character cannot be attacked and cannot be cross-examined about any previous convictions.

Question 18

What are the 2 purposes of appeals?

Answer 18

1. Private purpose = to do justice in particular cases by correcting wrong decisions and;
2. Public purpose = maintaining public confidence in the administration of justice by making such corrections and clarifying and developing the law.

Question 19

For first appeals, when is permission to appeal given?

Answer 19

Permission only given where the court considers:

1. That the appeal has a real prospect of success, or;
2. There is some other compelling reason why it should be heard.

– Has to be a realistic prospect of success.

– “Compelling reason” = important question of law / general policy at stake which requires consideration of higher courts.

– If appeal is to Court of Appeal or the Supreme Court = the case must also raise an important point of principle or practice.

Question 20

If the appeal is to the court of appeal / supreme court, what additional requirement is there?

Answer 20

raise an importance point of principle or practice.

Question 21

For second appeals, what is required for permission to appeal?

Answer 21

Permission required from the COURT OF APPEAL before the judges will hear the case.

Question 22

Is there an automatic right to appeal?

Answer 22

NO.

Question 23

What is the procedure for applying for permission to appeal?

Answer 23

Part 52:

– Request is made at end of the trial & the judge will decide whether to grant permission.

– If request is denied, party can apply to the Court of Appeal itself.

– The Court of Appeal must list the matter for an oral hearing no later than 14 days after the relevant direction if they decide that the application cannot be fairly determined without the presence of the parties.

Question 24

What is the timing for appeal?

Answer 24

County Court / High Court = 21 days to appeal against a decision

Court of Appeal / Supreme Court = 28 days to apply for leave to appeal.

Question 25

Destiny of appeals (summary)

Answer 25

Decision of judge of the county court = Appeal to circuit judge of the county court

Decision of master or district judge of the high court = appeal to high court judge

Decision of circuit judge = appeal to high court judge

Decision of high court judge = Court of appeal

Decision of court of appeal = supreme court.

Question 26

What are the 2 grounds of appeal?

Answer 26

1) WRONG (as to law / interpretation of facts or exercise of discretion); or

2) UNJUST – Serious procedural irregularity in the proceedings of the lower court.

Question 27

What is required for permission to leapfrog appeal? (e.g., from high court to supreme court)

Answer 27

1) Matter raises an important point of principle or practice / some other compelling reason why the court of appeal should hear it.

Question 28

What is the process of a leapfrog appeal?

Answer 28

1. The grant of a leapfrog certificate by the trial judge; and
2. The grant of permission to appeal by the Supreme Court.