W9 A&Q (Trial/ Orders) Flashcards
What usually happens once a matter has been settled between the parties?
The settlement will be recorded in the consent order.
What is the effect of a consent order?
- ‘normal’ court order but indicates that the parties agree the terms set out, so that there is no need for the court to hear arguments from both sides.
&
- a defence of estoppel may be available (depends on the exact wording of agreement)
If a settlement has been recorded in a consent order, does the court still need to hear arguments from both sides?
No
What are 2 types of consent order?
- Consent order based on a contract
OR
- Consent order NOT based on a contract.
Can a consent order based on a contract be interfered by the court ?
Only rarely… (Tomlin Order)
Can a consent order NOT based on a contract be interfered by the court ?
An order may be altered or varied by the court.
When is the defence of estoppel available, once a consent order has been entered into?
It will be available if fresh proceedings are brought regarding matters in the agreement BUT this will depend on the exact wording of the agreement.
What is a Tomlin Orders?
A type of consent order.
What are the is the elements of a Tomlin Orders?
First Part: Public Part (Order)
Second Part: the confidential part that contains the detail of the agreement reached between parties. (Schedule)
When is a Tomlin Order is generally used ?
- The parties wish for the key settlement terms to be confidential
and/or
- When the agreed settlement terms go beyond those that the court could generally order as part of the proceedings.
Why does a Tomlin Order contain a schedule?
When the agreed settlement terms go beyond those that the court could generally order as part of the proceedings.
Does a ‘standard’ consent order contain its schedule?
Not generally present in a ‘standard’ consent order.
What is contained in Part 1: Public part of the Tomlin Orders?
- Contains actions to be taken by the court (and enforceable by the court) eg:
1) Stay of proceedings
2) Permission to apply
3) Detailed assessment of costs?
What is contained in Part 2: confidential part of the Tomlin Orders?
- Contains terms of agreement: enforceable with a further court order
- Enables parties to include provisions beyond those a court could order
Where would any direction for payment of money out of court or the payment and/or assessment of cost must be contained in a Tomlin Order? and why?
Must be contained in Part 1.
These directions require action by the court and must therefore be included in the public part of the order (as opposed to the private schedule)
Does a consent order or a Tomlin order require the courts order?
Yes
Although consent orders and Tomlin orders reflect the agreement of the parties, they still need the court’s approval.
When settling a cause of action, what are the options available for a party agree on?
A standard consent order with the other party
or
a Tomlin Order
What is the next cause of action, after parties agree on the content of the consent or Tomlin order?
They will need to apply to the court to have the order made
How can a party enforce the terms in the a consent or a Tomlin order take effect like any other court order?
After the application by the parties to the court to have the order made
AND
if the court does indeed make the order.
What is the effect if a settlement is reached during a period when the claim has been stayed on application for the consent/ Tomlin order?
Then the application for the consent/ Tomlin order is treated as an application also to have the stay lifted.
Can judgement and order be made after settlement by consent and at an interim stage before trial?
Yes
If a parties resolve their dispute without the need to issue proceedings, would they still require a consent order or a Tomlin order?
No, there are no proceedings to dispose of.
Instead the parties will record their agreement in a settlement agreement - effectively a form of contract
Does a consent order apply to an interim application before trial?
Yes, it is also possible to reach an agreement in relation to an interim application.
How will a claimant apply a consent order for an interim application?
1) C will make an application to court in the usual manner if necessary
2) A consent order would be drawn up recording the agreement and both parties would indicate their agreement to the consent order
3) The consent order will be filed at court (ideally when the application notice is filed but later if necessary)
4)The applicant would usually invite the court to consider the application on paper and without a hearing
Is the court obliged to approve a consent order for an inter application? and why?
No.
This is a case management decision, but the fact that the parties are agreed makes approval much more likely.
What is the two forms of consent order?
A 2 part Tomlin Oder
Or
A Regular order
What are the advantages of a Tomlin Order?
1) Allow some terms of settlement to be kept confidential by inclusion in a confidential schedule to the main order
2) Greater flexibility in terms of settlement terms than a consent order.
What will be the focus of the trial?
Any issues which remain unsettled between the parties
What are certain steps that the parties will need to take to ensure that the case is fully prepared for trial?
Steps that the parties will need to take to ensure that the case is fully prepared for trial, which may include some or all of the following:
1) Pre-trial checklist/listing questionnaire
2) Brief to Counsel
3) Reading list
4) Pre-trial review
5) Skeleton arguments
6) Witness summons
7) Case summary
8) Authorities
9) Trial bundle
10) Notice to admit facts
When will pre-trail checklist needed to be completed?
In cases allocated to the fast track and multi-track
What is the purpose of a Pre-trial checklist?
Provides the court with another opportunity to:
1) Check that the case management directions previously given have been complied with and that the case is ready for trial
2) give any further necessary directions
&
3) Fix a date for trial (or confirm a date that has already been fixed)
What does the pre-trial checklist require from the parties?
1) To confirm whether they have complied with the directions given (and of not which directions are outstanding and by what date they will be complied with)
2) To specify any further directions required to prepare the case for trial and enclose an application form and draft order for those directions
3)To confirm whether the court has already consented to expert evidence being given at trial (in writing or orally). If it has not such an order should now be sought by way of application (Step 2)
4) To give details of experts, whether they have met to discuss their reports and whether their reports have been agreed
5) To give dates within the trial period when experts will not be available
6) To give details of who will present the case at trial and their availability and any special facilities they require
7) To give details of who will present the case at trial and their availability within the trial period
8) To estimate the trial length, including cross-examination and closing arguments and to attach a proposed timetable for trial (preferably agreed between the parties).
When is the pre-trial checklist sent to each party?
14 days before the due date for filing.
The due date will be at least 8 weeks prior to the trial date or the start of the trial
When is the due date for filing?
The due date will be at least 8 weeks prior to the trial date or the start of the trial.
How can the court avoid conflicting or incomplete information for a pre-trial checklist ?
Parties are encouraged to exchange copies of the pre-trial checklists before filing.
What happens after the pre-trial checklist has been filed?
The court will give any further directions that are needed to get the matter listed for trial.
Would the directions given by the court after the pre-trail checklist require a hearing?
These directions may given with or without a hearing as appropriate
What will a hearing consist of after the pre-trail checklist has been filed?
The hearing will usually be the pre-trail review
What are the directions the court must give, in the pre-trail review?
1) Fix the trial date (or confirm the date already given)
2) Give a time estimate for trial
&
3) Fix the place for trial
What are the directions the court may give, in the pre-trail review?
Provisions about:
1) evidence (in particular that of experts or other special arrangements)
2) a trail timetable
3) Preparations of trial bundles
&
4) Any other matters required to prepare the case for trial
What is the purpose of a pre-trail review?
To check that the parties:
- have complied with all previous orders
- and directions
- and to give directions for conduct of the trial.
What is the purpose of a trial bundle?
To ensure that all relevant material is before the court at trial so that the trial proceeds smoothy and expeditiously.
*It also assists advocates to prepare for and present their cases effectively and the judge to identify any pre-trial reading.
For the trial bundle, how should all the documents likely to be referred to at trail be placed?
Into paginated and indexed files
Who should file the trail bundle?
The claimant
When should the trail bundle be filed?
no more than seven days and no less than 3 days less than 3 days before the trail begins.
In the trial bundle, should any areas of disagreement be included?
If there are any areas of disagreement, a summary of the points in dispute should be included.
In the trial bundle, should any areas of agreement be included?
Yes.
What is the consequences for a trail bundle not complying with the guidance in the PD?
- May be penalised in costs.
- slows proceedings,
- wastes courts time
To who should the trial bundle be filed to ?
- The court
- each parties to the proceedings
-and a further set for use by the witnesses while giving evidence.
What must be included in the trail bundle?
Unless the court orders otherwise a trial bundle should include a copy of:
1) Claim form and all statements of case
2) Case summary and/or chronology where appropriate
3) requests for further information and responses to these.
4) all witness statements to be relied on as evidence
5) any witness summaries
6) any hearsay notices
7) any notices of intention to rely on evidence which is not:
a) contained in a witness statement, affidavit or expert report
b) being given orally at trial
c) hearsay evidence
8) any medical report with responses to them
9) any experts reports, with responses to them
10) any order giving directions for the conduct of the trial and
11) any other necessary doc.
When should a reading list be included in the trial bundle?
In all High Court cases in the Chancery Division and the King’s Bench Division.
What should a reading list include?
- The estimate of the reading time the judge is likely to require to get to know the case and the relevant authorities properly
+
- estimate of the length of the hearing
+
- signed by all advocates
When should a skeleton argument be prepared?
For High Court trials
What should the Skelton argument include?
- concisely summarising the submissions to be made
and
- citing the authorities to be relied on.
Who should carry out the Skelton argument?
The counsel.
What is the role of the Counsel clerk in skeleton argument ?
Counsel clerk will ensure the skeletons are lodged at court and exchanged with the other side.
Who is responsible in lodging a reading list with the trial bundle?
The claimant
When should a list of authorities be included?
If the case is in the High Court
When is the list of authorities submitted and to who?
A list of authorities must be submitted to the court by 5 pm the day before the hearing.
What is the purpose of a list of authorities?
To enable copies of the relevant law reports to be brought into court for the hearing the next day.
Should the list of authorities be exchanged with the other side?
It is usual to agree and exchange a list of authorities with the other side but not necessary.
What is a case summary?
A short non-contentious summary of the issues in the case.
What should the parties do if a case settles between the listing stage and trial?
The parties must notify the listing officer for the trial court immediately.
Who must the parties notify if a case settles between the listing stage and trial?
The listing officer
Why must the parties notify the listing officer if a case settles between the listing stage and trail?
To enable the court to try and allocate the time to other cases.
What is the consequences of not the parties not notifying the listing officer if the a case settles between the listing stage and trial?
Cost penalties are likely to be imposed.
What is the purpose of a notice to admit facts?
To formally ask the other party to admit a particular factual point that is in issue in the case.
What happens after the notice to admit facts is served?
The person receiving the notice needs to decide to either:
- Not admit the point
or
- Admit the point
What is the result if a party does not admit the fact?
1) Evidence will be called at trial
2) Judge will decide whether the fact is correct or not
a) Fact is correct: the party receiving the notice is venerable = Likely to face cost consequences
What is the consequences if a party receiving the notice does not admit a fact and the judge agrees that the fact was correct?
the party receiving the notice is venerable as they ought to have agreed the fact when given the chance earlier and avoided wasting courts time. 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.
What is the brief to counsel?
Counsel will likely be briefed to appear at trial in which case his or her instructions to appear on your client’s behalf (the brief need to be sent to counsel with a full set of trial documents in good time.
Would a detailed brief to counsel be required for complex multi-track cases?
Counsel will usually be involved throughout the case and will not need a detailed brief as such.
Would a detailed brief to counsel be required for smaller, less complex cases?
yes, The brief will need to summarise the whole of the case to date to enable counsel to prepare fully for trial
What will the brief fee cover?
Both the preparation for and first day of trial.
When is a staged payment used for a brief to counsel?
It is usual to have a staged payments in larger cases and written agreement as to what precisely is included in the brief.
How is the brief fee agreed ?
The brief fee will be agreed with the counsel clerk
If a case settles after the brief is delivered can the the brief fee (or staged payments already due) be refunded?
No (unless the parties agree otherwise)
What is a refresher?
Subsequent days of trial are by an agreed free per day for the brief of counsel.
How does the court secure the attendance of witnesses and experts?
May be compelled to attend trial by issuing and serving the witness a witness summons in from N20.
What is a witness summon require a witness to do?
May require a witness to attend to give:
1) oral evidence
or
2) to produce specified documents
or
3) Both
When should court room etiquette be followed?
During trial or ANY court hearing
What are the court room etiquette?
1) Legal representative (and generally parties ) should dress formally
2) In some contexts, a legal representative should stand when speaking and sit when not speaking.
3) Legal representatives should addresses the court indirectly and in the correct title.
4) An opponent’s representative is referred to as ‘my learned friend ‘ if a barrister or ‘my friend if a solicitor
5) When the judge either enters or leaves the courtroom, everybody must stand, and wait for the judge to sit/leave the room before sitting down, and bow to the judge when the judge bows (which will be on entering and before leaving)
6) if speaking first in court, legal representative should introduce their opponent(s), by name and state the party they represent. They should introduce themselves by identifying the party they represent without stating their own name.
7) an advocate should never indicate what they ‘think’ -submissions should be advanced using ‘it is submitted…’ or ‘I submit..’ instead.
8) A legal representative should not approach the bench (where the judge sits) without permission
What is a trial?
Is the hearing where the substantive issues between the parties are decided by the court, having all the witnesses give their evidence.
What is a judgment or final order?
The order made at trial which ends the claim
What is the order of events in trial?
1) Claimant’s opening speech
2) Claimant’s case: Evidence in chief, cross examination, re examination
3) Defendants case: evidence in chief, cross examination, re-examination
4) Defendant’s closing speech
5) Claimant’s closing speech
*The following is a possible order of events, SUBJECT to time limits and other directions made by the court.
What is the Claimant’s opening speech?
Counsel for the claimant will usually:
- describe the nature of the claim
and
-will identify the issues to be tried by reference to the statements of case, statement of issues and key documents.
*The judge will generally have read the key doc in the trial bundle, and in smaller cases the judge might dispense with the need for opening speeches
When will a judge dispense the need for opening speeches?
In smaller cases
What is is the claimant’s case?
Evidence called on behalf of the claimant.
What is evidence in chief in a Claimant’s case?
The witness statement of a witness will stand as the evidence in chief of that witness (unless the court orders otherwise). The witness will take the stand and confirm that it is their evidence.
How will a cross examination be conducted in a Claimant’s case?
After the evidence in chief, defendants counsel may then cross -examine the witness.
Cross-examination may (and usually will) be conducted using leading questions and non-leading questions
What is the purpose of a cross-examination?
To challenge any weakness in the evidence or the credibility of the witness
How will a re-examination be conducted in a Claimant’s case?
After the cross-examination.
Counsel for the Claimant may re-examine the witness on matters covered in the cross-examination
Non-leading questions are used.
What is the sequences of events in a Claimants case?
Evidence in chief
Cross examination
Re-examination
What is the sequences of events in a Defendants case?
Evidence in chief
Cross examination
Re-examination
What is evidence in chief in a Defendants case?
The witness statement of a witness will stand as the evidence in chief of that witness (unless the court orders otherwise). The witness will take the stand and confirm that it is their evidence.
How will a cross examination be conducted in a Defendant’s case?
After the evidence in chief, Claimants’ counsel may then cross -examine the witness.
Cross-examination may (and usually will) be conducted using leading questions and non-leading questions
How will a re-examination be conducted in a Defendant’s case?
After the cross-examination.
Counsel for the Defendants may re-examine the witness on matters covered in the cross-examination
Non-leading questions are used.
Does a defendant have an opening speech? If so when would it be allocated in the sequence of events in trial?
In larger cases the defendants case may be preceded by a defendants opening speech
What is Defendant’s closing speech ?
After the defendant’s case
Counsel for defendant will generally refer to evidence adduced, highlight any inferences to be drawn from that evidence and how this supports the defence
What is Claimant’s closing speech ?
After defendant’s closing speech
Claimant’s counsel will then refer to the claimant’s evidence, inferences to be drawn from this and how this supports the claimant’s case.
What will a judgement/ final order include?
A judgement/final order will make provisions for :
- costs and interest
When is the judgements and final orders made?
After trial or final hearing of a matter or in accordance with provisions made in CPR for earlier judgments (defaults judgments and summary judgements)
What are other types of order made by the court?
- Interim orders
- Consent order
What are interim orders?
Are orders made at any time in a claim up to trial which do not finally conclude the matter
What is a consent order?
If a case is settled along the way, a consent order will be required, which will be approved by the court.
As the court will need to be notified of any settlement and that the claim is at an end
The order may also assist in enforcing the agreement is reached,
Does a judgment have to be handed down immediately following trial?
No, if the matter is complicated, it is likely that judgment will be reserved for a later date.
What does it mean when the judgement is reserved?
That the judge will deliver the judgement at a later date.
What happens if a judgement is reserved?
- Invite the parties’ legal representative to give their views on how the judgment should be handed down.
or
- through emailing the parties representative
The judge will :
1) Circulate judgement in draft to the parties in advance of formally handing it down (by 4pm on the second working day before handing it down)
2) Parties will prepare costs submissions and provide the judge with details of obvious errors
3) Judgement is handed down
4) the parties will make appropriate costs submissions
5) judge will make cost order
Is a judgment in draft a public document?
No, it is not a public document until it is handed down
What is a disposal hearing?
- When the court decides to firstly hold a trial to decide who is to blame and then,
-assuming the defendant is found liable, some time later there will be a further trial or hearing to assess the level of damages.
When will a court allow a disposal hearing/ split trial?
In cases where the evidence on liability is different to the evidence on quantum and it will further the overriding objective to hold two separate hearings.
What does drawing up an order?
Means setting the order out in the formal document to be sealed by the court
Who will draw up an order?
By the court
*Unless:
- the court orders a party to draw it up
- or a party (with the permission of the court) agrees to draw it up
- or the court dispense with the need to draw it up
- or it is a consent order.
When will an order not be drawn up by the court?
Unless:
- the court orders a party to draw it up
- or a party (with the permission of the court) agrees to draw it up
- or the court dispense with the need to draw it up
- or it is a consent order.
If an order is to be drawn up by a party, when does the party drawing the order up is required to file it?
No later than 7 days after becoming responsible for doing so, in order for the court to seal it
Who draws up a consent order?
By the parties
If an order is to be drawn up by a party, what is required to do?
- Required to filed it no later than 7 days after becoming responsible to do so
- File sufficient copies for service on themselves and other parties at the same time
What happens after an order is sealed?
The court will serve the sealed order on everyone
What is the consequences, If the party responsible for drawing up the order fails to do so within the time limit?
Time limit: within 7 days after becoming responsible
Consequences: any other party may do so instead.
When is a judgement/ order effective?
From the date it is given or made, not served
When do the parties generally have to comply with judgement/ orders in relation to payments of amounts of money?
14 days, unless otherwise specified by the court.
- This means that payment of the judgment debt will be due within 14 days from the date of order, plus interest which will have been running during that time post judgment.
When does an interest start to run, 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
What is the rate of interest on judgment debts?
Set at 8% per annum under section 17 Judgements Act 1838
What is the general rule governing whether costs are payable by one party to another ?
Costs follow the event
What does the cost follow the event mean?
This means that the unsuccessful party pays the costs of the successful party.
