UNIT 6 - Preparations for trial, trial procedure, trial costs and appeals Flashcards
The claimant has issued proceedings against the defendant. Negotiations break down and the matter is proceeding towards trial on the multi-track.
Which of the following statements is correct?
A) A witness summons should be issued for all witnesses to ensure their attendance at trial.
B) The parties must complete a pre-trial checklist.
C) The court will list the case for a pre-trial review in every case.
D) Each party must prepare their own trial bundle.
E) A case summary is not required as it only applies to the fast track.
CORRECT ANSWER B - the parties must complete a pre-trial checklist to assist the court in establishing that all directions have been complied with and that the claim is ready to proceed to trial. Option A is wrong because a witness summons will not be required in ‘all’ cases. It will only usually be applied for where there is some doubt about a witness of fact attending voluntarily, although a witness may require a summons to show their employer. Option C is wrong because the court will not always list the case for a pre-trial review.
Option D is wrong as the claimant (or their lawyer if they are legally represented) is responsible for preparing the trial bundle unless the court orders the defendant to
do so but, in any event, it will be a joint bundle. A case summary may be ordered for the multi-track but not generally for cases allocated to the fast track – hence, option E is wrong.
A claim for breach of contract proceeds to trial and a timetable is set by the court.
Which of the following statements best describes what will happen at trial?
A) The order of events is likely to be preliminary issues (if any), examination of the claimant’s witnesses, examination of the defendant’s witnesses, closing speeches by both advocates.
B) A witness’s statement stands as their evidence so examination-in-chief will usually be limited to requiring the witness to take the oath, identify their personal details and confirm that the contents of their witness statement are true.
C) A witness may always add to or expand their witness statement to clarify a point or to clear up any ambiguities.
D) Witnesses may be asked open, leading or closed questions by the advocates for both parties.
E) The judgment will address all disputed issues of liability and (where relevant) quantum, but the issue of costs is always reserved for a subsequent hearing.
CORRECT ANSWER B - The witness statement stands as that witness’s evidence-in-chief.
Option A is wrong because, ordinarily, the claimant will be given permission to make an opening speech, once preliminary issues have been addressed and before witnesses are examined. Option C is also wrong. Although a witness may amplify their statement to clarify a point or give evidence in relation to new matters which have arisen since they signed their statement, they will not ‘always’ be able to do so, as permission of the judge must be obtained first.
Option D is wrong because, when examining their own witness, an advocate can usually only ask open and non-leading questions. Closed and leading questions can generally only be used during cross-examination.
Option E is not the best answer. If the case is proceeding on the fast track, the judge will summarily assess costs when giving judgment. If the case is proceeding on the multi-track, the judge will, when handing down judgment, usually order who shall pay whose costs, but will leave the quantification of those costs to a subsequent detailed assessment (if the parties cannot agree the matter).
A claim between the claimant and the defendant is heard by a district judge in the County Court. At the end of the trial, the judge gives judgment. The claimant is unhappy with the outcome and wishes to appeal.
Which of the following statements best describes the approach that would apply to the claimant’s appeal?
A) The claimant’s appeal will be heard by a circuit judge.
B) The claimant has 14 days in which to appeal the decision.
C) The claimant must apply for permission to appeal to the trial judge.
D) Permission will be granted but only if the court considers that the appeal would have a real prospect of success.
E) If dissatisfied with the decision of the appellate court, the claimant will usually be allowed to appeal further to a court higher up in the hierarchy.
CORRECT ANSWER A - Because the matter was decided by a district judge in the County Court, the appeal will be heard by the next level of judge – a circuit judge. Option B is wrong because the claimant has 21 days to appeal against a County Court decision (as here). Option C is wrong because the claimant may also apply for permission to appeal to the appeal court itself. Option D is wrong as there are two grounds on which permission to appeal may be granted, the other being that there is some other compelling reason why it should be heard. Option E is also wrong as in most cases, the decision of the appellate court will be the final decision as the grounds on which a second appeal may be permitted are very onerous.
A claimant is considering issuing proceedings in the County Court against the defendant for loss of profits estimated at £100,000. Before taking the matter further, the claimant wants advice from their solicitor about the costs implications and how these will be dealt with by the court. The solicitor writes to the claimant explaining these.
Which of the following statements contained in the letter of advice is correct?
A) If the case proceeds on the multi-track most of the costs are fixed by the CPR.
B) If the case proceeds on the multi-track costs are usually subject to summary assessment.
C) Each party will generally bear their own costs in making or responding to interim applications on the way to trial.
D) If the case is allocated to the intermediate track, costs will be ordered on the standard basis so that they must be reasonable to the matters in issue.
E) If costs are ordered on an indemnity basis any doubt is resolved in favour of the receiving party.
CORRECT ANSWER E - Option A is wrong as although the fast and intermediate tracks are subject to the fixed costs regime, the multi-track is not. Option B is wrong because the costs of multi-track litigation are generally subject to detailed assessment. However, the costs associated with interim applications are often addressed on a summary basis by reference to the usual principle that the unsuccessful party is responsible for the successful party’s costs –
option C accordingly is wrong.
Option D is wrong. Costs on the standard basis are recoverable if they are proportionate to the matters in issue – not ‘reasonable’. Also, if the case is allocated to the intermediate track, it will be subject to the fixed recoverable costs regime.
A company’s business is dependent upon a few major contracts, including one with the local Council. As a result of a disagreement, the Council breaks off the relationship. The company sues, alleging that the Council was not entitled to terminate the contract. The Council applies for a security for costs order on the basis that the company will be unable to pay its costs if the Council wins at trial after the company admits it is in financial difficulties.
Which of the following statements best describes what might happen during the security for costs application?
A The court cannot take into account the strength of the claim or the defence. Such matters must be left for determination at trial.
B The Council should provide evidence in support of its application, such as the company’s accounts and poor credit ratings.
C The court cannot take into account any argument that it would not be just to make an order because the company’s financial difficulties are as a result of the Council’s wrongful termination.
D If the court is satisfied that one of the required conditions applies and that it is just to do so, it must make an order for security for costs.
E Even if the application is successful, the Council will have to bear its own costs in making that application. The purpose of the application is to provide security for future costs, not to quantify past costs.
CORRECT ANSWER B - The application is likely to be made on the grounds that the claimant
is an impecunious company. In such cases, the defendant should produce evidence of the company’s poor financial standing (such as the company’s accounts and poor credit ratings).
Option A is wrong. The strength of the claim and the defence are matters that the court may take into account (although it is true that the court will want to avoid a situation in which the merits have to be considered in any detail).
Option C is wrong. An application for security for costs may fail where the claimant is able
to persuade the court that its shortage of money has been caused by or contributed to by the defendant’s behaviour (for example, in terminating a contract and not paying the agreed contract price when there was no legal basis for doing so).
Option D is wrong because the court’s power to make an order for security for costs is discretionary rather than mandatory. Option E is also wrong. The usual costs position on any interim application is still relevant when making or opposing an application for security for costs, namely the loser pays the winner’s costs.
A claimant makes a Part 36 offer of £40,000 on 1 March to the defendant to settle their dispute. The offer expires on 22 March (Day 21). The defendant rejects the offer and the matter proceeds to trial. After considering the evidence, the judge finds in the claimant’s favour and damages are awarded against the defendant in the sum of £45,000.
Which of the following is a consequence that will apply under Part 36?
A) Unless it is unjust to do so, interest will be payable on the claimant’s costs from 23 March onwards at a rate of 1% above base rate.
B) Unless it is unjust to do so, interest will be payable by the defendant on the damages awarded at a rate of up to 10% above base rate from the date of cause of action.
C) Unless it is unjust to do so, a split costs order will be made so the defendant is ordered to pay the costs up to 22 March and the claimant pays the costs from 23 March up to and including the trial.
D) Unless it is unjust to do so, the defendant will pay the claimant’s fixed costs up to 22 March; and also from 23 March, but these fixed costs will be subject to a 35% uplift.
E) Unless it is unjust to do so, an additional amount of £2250 will be payable by the defendant to the claimant.
CORRECT ANSWER D - Where the claimant secures a judgment which is at least as advantageous as the claimant’s own Part 36 offer (as here), one of the consequences of the defendant not accepting the offer on the intermediate track is that it will become liable to pay the claimant’s fixed costs with a 35% uplift from Day 22 onwards, unless it is unjust to do so.
Option A is wrong. Although it is correct to state that one consequence of the claimant securing a more advantageous judgment is that the defendant will be liable to pay interest on the claimant’s costs from Day 22 onwards, that interest is payable at a rate of up to 10% above base rate.
Option B is also wrong because the penalty interest of up to 10% above base rate does not run from the date of cause of action, but from Day 22. Option C does not apply to this scenario. A split costs order would be relevant if the defendant had made a Part 36 offer which the claimant failed to beat. Furthermore, the additional amount payable on the damages is 10% for the first £500,000 awarded, and so the correct figure is £4500 and not £2250 as stated in Option E. This is only equivalent to an additional amount of 5% of the damages.
TRUE OR FALSE: a witness summons should only be served on a witness who will not voluntarily attend the trial?
FALSE - Often a witness will be happy to attend voluntarily but needs a summons in order to show their employer that they must be absent from work in order to attend court.
Which of the following about a witness summons is correct?
A) A witness summons can only compel the attendance of a person to give evidence at court.
B) The only penalty for not answering a witness summons is imprisonment.
C) The court’s permission is never required to issue a witness summons.
D) The court, or the party issuing the witness summons, may serve it.
E) At the time of serving the summons, the witness will be asked to claim their travelling expenses and loss of any earnings.
CORRECT ANSWER D - The court usually serves the witness summons by post. However, a party may wish to serve it personally on the witness so that there is no doubt the witness has been summoned.
Option A is wrong. A witness summons is an order of the court which, if properly issued and served, compels the attendance of a person either to give evidence or to produce documents at a trial.
Option B is wrong. Penalties for disobedience are a fine and, in High Court cases only, may include imprisonment.
Option C is wrong. As a general rule, the court’s permission is not required to issue a witness summons. However, you should note by way of information that CPR, rule 34.3(2) provides that a party must obtain permission from the court where it wishes to (a) have a summons issued less than 7 days before the date of the trial; (b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or (c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
Option E is wrong. At the time of service of the summons, the witness must be offered or paid a sum reasonably sufficient to cover their travelling expenses to the court and in returning to their home or place of work. In addition, a sum must also be offered or paid by way of compensation for loss of earnings or benefit (e.g. holiday leave). By way of information, there is a prescribed sum under regulations which is equivalent of the amount paid to a witness who attends the Crown Court.
TRUE OR FALSE: one of the objectives of the pre-trial checklist (listing questionnaire) is to confirm the estimated length of the trial?
TRUE - The other objectives include ensuring that all case management directions have been complied with to date or otherwise that fresh directions are speedily given; fixing a date for trial or confirming the date and time already given; setting a timetable for the trial; making arrangements for vulnerable witnesses and deciding whether or not to hold a pre-trial review in an intermediate track or multi-track case.
Which of the following concerning the trial bundle is correct?
A) Original documents must be included in the trial bundle.
B) The preparation and production of the trial bundle is normally the responsibility of the legal representative who has conduct of the claim on behalf of the claimant.
C) The trial bundle should include each party’s N265 standard disclosure list of documents.
D) The claimant must file the trial bundle not more than 14 days and not less than 7 days before the start of the trial.
E) If the claimant is a litigant in person, the court must direct that another party’s legal representative prepares and produces the trial bundle.
CORRECT ANSWER B - The preparation and production of the trial bundle, even where it is delegated to another person (such as a trainee), is the responsibility of the legal representative who has conduct of the claim on behalf of the claimant.
Option A is wrong. The originals of the documents contained in the trial bundle should be brought by the parties to the trial. The bundle should contain copies of the relevant documents.
Option C is wrong. The parties’ N265 standard disclosure list of documents should not be included in the trial bundle. The disclosure and inspection of documents should have been completed before the trial occurs. What should be included in the trial bundle is listed in CPR PD 32 paragraph 27.5 which you studied as part of Prepare Task 4.
Option D is wrong. The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.
Option E is wrong. If the claimant is unrepresented, the court may direct that another party must prepare and produce the trial bundle.
TRUE OR FALSE: the evidence from witnesses at a trial must always be grouped according to the party calling them?
FALSE - As expert reports and witness statements have been exchanged before the trial commences, the parties know what each witness is expected to say at the trial. Thus, the witnesses could be grouped according to the issues instead. This is becoming increasing common with expert evidence. For example, in a case involving witnesses of fact, expert surveyors and expert architects, the witnesses of fact for both sides would give their evidence first, followed by both expert surveyors, then both expert architects.
TRUE OR FALSE: if a witness’ evidence given in-chief is not challenged in cross-examination, the normal assumption of the court will be that it is accepted?
TRUE - In general, a party is required to challenge in cross-examination the evidence of any witness of the opposing party if they wish to submit to the court that the evidence should not be accepted on that point. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with their evidence.
TRUE OR FALSE: costs awarded on the standard basis must be reasonable and on an assessment any benefit of the doubt is given to the receiving party; costs awarded on the indemnity basis must be reasonable and proportionate and on an assessment any benefit of the doubt is given to the paying party?
FALSE - It is the other way around. Costs awarded on the indemnity basis must be reasonable and on an assessment any benefit of the doubt is given to the receiving party. Costs awarded on the standard basis must be reasonable and proportionate and on an assessment any benefit of the doubt is given to the paying party. You should now be able to understand why an award of costs on the indemnity basis is a penalty for the paying party since it ends up paying more to the receiving party. Why? Well, first, an item of costs is recoverable even if it was disproportionate to incur provided it was reasonable to do so. Second, an item of costs is recoverable even if it is disproportionate in amount provided that amount is reasonable. Third, any doubt the costs judge has as to whether or not it was reasonable to incur an item of costs or as to the reasonableness of the amount claimed must be given to the receiving party.
Which of the following regarding an assessment of costs by the court on the standard basis is correct?
A) The court will start by deciding if each item claimed was reasonably incurred and, if so, reasonable in amount. Any doubt will be resolved in favour of the paying party.
B) The court will start by deciding if each item claimed was reasonably incurred and, if so, reasonable in amount. Any doubt will be resolved in favour of the receiving party.
C) The court will start by deciding if each item claimed was reasonably incurred and, if so, proportionate in amount. Any doubt will be resolved in favour of the paying party.
D) The court will start by deciding if each item claimed was reasonably incurred and, if so, proportionate in amount. Any doubt will be resolved in favour of the receiving party.
E) The court will start by deciding if each item claimed was proportionately incurred and, if so, proportionate in amount. Any doubt will be resolved in favour of the paying party.
CORRECT ANSWER A - The judge will start by deciding if each item claimed was reasonably incurred and, if so, reasonable in amount. Any doubt will be resolved in favour of the paying party. Having worked out the total amount of reasonable costs, the judge will not reconsider each item but instead will look at each phase of the litigation (statements of case, disclosure, witness statements, experts, etc) and determine if the costs were proportionately incurred, and, if so, whether they are proportionate in amount. Again, any benefit of the doubt about those decisions is given to the paying party.
Which of the following relating to appeals is correct?
Only one appeal from a judgment can be made.
Permission to appeal will only be given if the original decision was wrong or unjust.
Permission to appeal can only be given by the judge who made the original decision.
An appeal will be granted if the appeal court finds a compelling reason to do so.
An appeal from a decision of a County Court Circuit Judge will normally be made to a High Court Judge.
CORRECT ANSWER E - An appeal from a decision of a County Court Circuit Judge will normally be made to a High Court Judge. An appeal from a decision of a County Court Circuit Judge may only be ‘leapfrogged’ to the Court of Appeal if the appeal raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.
Option A is wrong. It is possible for a party dissatisfied with the outcome of their first appeal against a decision of the County Court or the High Court to make a second appeal against the decision to the Court of Appeal. However, permission will be required from the Court of Appeal. The grounds for granting that permission are that (a) the appeal has a real prospect of success and raises an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it.
Option B is wrong. It is the grounds for allowing an appeal that are stated here. The grounds for permitting a first appeal are that the court considers the appeal would have a real prospect of success or that there is some other compelling reason for the appeal to be heard.
Option C is wrong. Permission to appeal may be given by the lower court which made the original decision or by the appeal court.
Option D is wrong. An appeal will be granted if the appeal court finds the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
