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Dispute Resolution - 14 - Trial - Coggle Diagram
Dispute Resolution - 14 - Trial
Consent Orders and Settlement Before Trial
- non-part 36
If a case is settled before trial
other than
by one party accepting the other's Part 36 offer, the
parties must:
Record
terms of agreement
,
including settlement costs
, in a
CONSENT ORDER
Without a consent order, there's no
enforceable obligation on payment
Often a
consent order
is a
TOMLIN ORDER
Phrased in a way that lets parties restart proceedings if agreed terms are not carried into effect
Tomlin Order has 2 parts - memorise!
Order, confirming parties have
agreed settlement
AND that
case is stayed pending terms of settlement being carried out
A
schedule confirming who, how much, and when the settlement has to be paid
Pre-Trial Checklist and Hearing
Pre-Trial Checklists (Must be filed with Court
no later than 8 WEEKS before START OF TRIAL)
Prepared on expiry of day on which
directions should have been complied with
. Both party makes 1.
Pre-trial checklists
seek to confirm what has already been done
; and
Provide last opportunity for parties to re-estimate time for trial
Ascertain whether parties are legally represented
Confirm the estimated length of trial
Give the parties opportunity to prepare draft directions for court's consideration (if further directions are required)
Pre-Trial Review (a form of Case Management Conference)
Common in multi-track - upon receipt of pre-trial checklists
A form of
Case Management Conference
. Usually takes place
4 weeks before trial starts
Purpose is to
ensure parties are ready for trial
->
court may give directions to this goal
Process court undertakes:
Checks compliance with previous court orders and case managemnt directions
Approves the trial timetables
Approves witness statements' admissibility as evidence
Sets
case management directions which are required for trial
Eg varying previous idrecitons to accommodate changign circumstnaces,
rectifying previous shortfalls in compliance
, preparation and file of written submissions, ensuring
availability of witnesses and experts
Ensures preparation of trial bundles
- when they need to be served and who is responsiblef or them
Fixing a time and date for trial if not already fixed
Witness Summons
Witness Summons
Summons to compel a witness to attend court to give evidence.
Must
send
to
court and witness
*
One copy for the witness.
One copy for the court file.
Court fee
must be paid.
One copy for service (to the court)
Must be served AT LEAST 7 DAYS BEFORE TRIAL
Must include
Conduct Money
To cover the witness’s expenses and loss of time.
Must be enough for travel to and from court.
Also covers the amount lost from missing work (currently capped at £67, but
more if they have to stay overnight
).
If
conduct money is not included
, the summons is
NOT EFFECTIVE
.
Effect of Serving a Witness Summons and
Contempt of Court
If the witness fails to attend, they will be in
contempt of court
.
In County Court, likely consequence is a
fine
for non-attendance.
Service is often required for:
Often: Experts giving evidence.
REQUIRED - Police officers when they are needed to testify at a hearing.
Advocacy
Advocacy
Solicitor instructing a barrister
Modes of address to Judge -
MEMORISE FOR EXAM
District Judge
District Judge Hill (written title), Judge (in court) Judge (in correspondence)
Circuit Judge
His Honour Judge Hill (written title), Your Honour (in court) Judge, (in correspondence)
Master
Master throughout
High Court
The Honourable Mr/Ms Justice Hill (written title), My Lord/Lady (in court), Judge (in correspondence)
Court of Appeal
The Right Honourable Mr/Ms Justice Hill (written title), My Lord/Lady (in court), Lord Justice (in correspondence)
Courtroom etiquette
Refer to your opponent as "my friend"
Trial Bundle (necessary for ALL TRIALS)
Typically prepared by claimant's solicitor, bears cost of bundle
1 Copy for
EACH party and Court
- MEMORISE
MUST
be
FILED **
between 3 and 7 days
BEFORE TRIAL
takes place
Includes, inter alia;
Info about parties
Case summary
Schedule of issues
Witness statements
Expert reports, etc
Trial Format
Trial timetable
sets out what happens on day of trial, and what order
Judge has discretion to depart from timetable if it's in the best interests of justice
Similar format followed in general
Opening submission by claimant('s advocate)
Opening submission by defendant('s advocate)
Consideration of any preliminary issues
Claimant's witnesses, then experts,
give evidence
Defendant's witnesses, then experts, give evidence
Claimant's counsel makes
closing submissions
of behalf of claimant
Defendant's barrister makes their
closing submissions
4.5 Cross-examination of claimant's witnesses + experts (by defendant's solicitor), then re-examination (by claimant's solicitor)
5.5 Cross-examination of defendant's witnesses + experts (by claimant's solicitor), then re-examination (by defendant's solicitor)
Re-examination is the process where the party's advocate
asks their witness questions on MATTERS ARISING OUT OF CROSS-EXAMINATION
to try to
RESTORE WITNESS'S CREDIBILITY
on that point
Leading and Non-Leading Questions
Both
permitted during
cross-examination
Only
non-leading questions
are permitted during
re-examination
Leading question:
prompts/encourages desired answer
Eg You went to the shop that morning, didn't you?
Non-leading question:
does not prompt/encourage desired answer
Eg how/where/what/when - eg What did you do on Monday morning?
Judgement
Judge may render verdict straight away at conclusion of trial; OR
Retire briefly to consider evidence and then return to Court to render verdict
If judge feels they need
more time
, they may
RESERVE JUDGEMENT
and list it
FOR A HEARING
to 'hand down' their verdict
Discontinuance (as opposed to settlement or judgement being handed down)
Filing for Discontinuance
A party wishing to discontinue a claim before trial must
File and serve a Notice of Discontinuance
.
Permission Required in Certain Situations
Permission from the court is required to discontinue in cases where:
The court has granted an
interim injunction
.
The claimant has received an
interim payment
(
UNLESS the paying party CONSENTS)
.
Consequences of discontinuance
The claimant who discontinues is LIABLE FOR THE COSTS of the
defendant
for defending the action.
This liability is subject to qualified one-way costs shifting (QOCS) in certain cases, which can modify the costs outcome.
Ancillary matters
Submissions after Judgement
- After the judge hands down the judgment,
parties may make submissions on other matters related to the judgment
, including:
Interest:
A calculation of interest will usually be made and included in the judgment order.
Costs:
Normal rule: The losing party will normally pay the successful party's costs.
Submissions on costs can be made when judgment is handed down.
The judge may consider if the normal rule on costs should not apply.
Remember difference between proportionate (Standard basis) and Indemnity basis (indemnity basis occurs when Claimant beats/equals their offer at trial that defendant rejected)
Time to Pay
: The party
ordered to pay compensation can request time
to pay.
Stay of Execution: The losing party can
request a stay of execution IF THEY INTEND TO APPEAL
,
delaying enforcement of the judgment.
Permission to Appeal
The losing party may make an application for permission to appeal the decision - EITHER
IN COURT ORALLY
or
WRITTEN APPLICATION
if judge refuses there
Time limit
for
making an appeal
is
usually 21 days
unless Court says otherwise
Applies both to oral and written appeals