random points

Question 1

How does someone deal with entering a deposition as evidence in trial?

Answer 1

Notice of intention to put in evidence a
deposition must be served at least 21 days before the relevant hearing

the court has the power to prevent a party from relying on the deposition at trial

the court may require that individual in the deposition to attend court at trial as a witness

Question 2

Interim payments

Answer 2

When both quantum and liability are in dispute, an interim payment is not likely

in the absence of an admission, a claimant must show that it would obtain judgment for a substantial amount of money to get an interim payment granted

a claimant may only obtain judgment against a
defendant and NOT a third party to the claim eg car pile up

Question 3

Civil trial Witness statements - hearsay

Answer 3

When the hearsay is contained in the witness statement of a witness who will be called to give oral evidence at trial, then sufficient notice is given when the
witness statement is exchanged - NO NEED FOR AN EXTRA HEARSAY NOTICE, this is because the other side can already see what the hearsay evidence is when reading the WS

if one party does not attend trial, their WS cannot be used as their XIC at trial

in a civil trial, hearsay is never inadmissible just because its hearsay

Question 4

Parties to a claim - intestate

Answer 4

where a party to the claim has died before it has been issued and has no representative, the court may either order to proceed in the absence of a person representing the estate of the deceased or order for a person to be appointed to represent the estate of the deceased

the claimant does not need to apply for a grant of administration

Question 5

Claim form validity

Answer 5

the claim form is valid for 4 months, it has to be posted within this time frame BUT the deemed service does not have to fall within that 4 months

(validity is just before 12 midnight 4 calendar months after issue - this is when it needs to have been posted NOT DEEMED)

HOWEVER - in a arbitration claim the claim form must be served within 1 month from the date of issue

Question 6

Disclosure under part 31

Answer 6

(i) An order for train of inquiry disclosure.
(ii) An order for standard disclosure.
(iii) An order for disclosure of paper documents to be followed by disclosure of electronic documents.
(iv) An order that each party disclose documents it relies upon and at the same time request any specific disclosure it requires from another party.

The order must specifically state what documents are still in their control, whether privilege is asserted and the documents or classes of documents they MUST disclose

Question 7

Experts report formalities

Answer 7

While expert reports must contain a statement setting out the substance of the expert’s instructions, there is no requirement to append them

THE REPORT MUST CONTAIN A SUMMARY OF THE CONCLUSIONS REACHED

(1) An expert’s report must comply with the requirements set out in Practice Direction 35.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions –
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds that the report is inaccurate or incomplete

Question 8

costs in civil proceedings

Answer 8

Proportionality trumps reasonableness on an assessment on the standard basis

costs following the event is a starting point

Question 9

Earliest time to apply for a interim payments

Answer 9

The earliest time for applying for an interim payment is after the time for acknowledging service has expired (CPR, r. 25.6(1))

Question 10

Earliest time to apply for a summary judgement

Answer 10

The earliest time for applying for summary judgment is after the defendant has either acknowledged service or filed a Defence

Question 11

extending the time to serve claim form

Answer 11

CPR 7.6

applies for both part 8 and part 7 claim

test: the overriding objective, and the strength of the reasons for not being able to serve

(deal with it justly and consider the reasons and if it is of considerable importance)

Question 12

Summoning a witness for trial/ during trial

Answer 12

Permission to issue a witness summons is required if it is less than 7 days before the trial

Permission to issue a witness summons is required in the circumstances provided by CPR r 34.3(2), which broadly cover situations where the witness is being required to attend otherwise than at trial, or where it is being issued late (less than 7 days before trial).

The witness summons must be served at least 7 days before the trial (r 34.5(1)). In the situation in the question issuing the witness summons is an administrative exercise, CPR, r 34.3, PD 34 para 1.2 requiring two copies to be filed with the court.

if a witness statement has been served, but that witness is not called by the party who initially was to rely on the oral evidence, the other party MAY rely on the evidence as HEARSAY and DOES NOT need to make an application to do so

Question 13

seeking damage from another defendant

Answer 13

D1 can seek a contribution from D2 where they are both liable for the same damage

the unpaid part of the price can be counterclaimed by D1 against C under CPR R 20.4 and is usually done in the defence statement. if not, permission to amend will be needed from the court and an application must be made

A claimant may seek to add a 3rd defendant after an already named defendant seeks a contribution claim from a party not yet listed - but before that, the defendants cannot add people as defendants, just third parties to the claim by way of seeking contribution

a defendant in a counterclaim that wants to join the co-defendants in that counterclaim as the source of the money that they may owe to him - NEEDS PERMISSION OF THE COURT

ONCE CLAIM FORM HAS BEEN SERVED COURT PERMISSION IS ALWAYS NEEDED TO ADD OR SUBSTITUTE PARTIES

Question 14

application for a summary judgement service days

Answer 14

service is required 14 days before the hearing rather than the usual 3 clear days

First class post results in deemed service on the second day after it was posted

Question 15

how does a court of appeal look at the decision of a lower court?

Answer 15

the test for an appeal is:
to determine whether the lower court’s decision was wrong or unjust through some serious irregularity

The greatest respect is given to discretionary decisions and decisions based on the credibility of witnesses. These types of decision are best taken by the first instance judge, and the appeal court should be very slow to interfere with such decisions

An appeal court usually reviews the lower court’s decision. Greater respect is given by the appeal court to discretionary decisions than to inferences from primary fact

Question 16

Striking out a claim

costs after strike out

Answer 16

A claim may be struck out on failure to file a statement of case within the time specified in an unless order.

A statement of case may be struck out if the court finds it discloses no reasonable grounds for bringing a claim.

a strike out is never ‘automatic’

if a judge makes a strike out, the party seeking costs will need to may obtain judgement with costs by filing a request with the court for the money

Question 17

Standard basis of cost assessment

Answer 17

If all pre-action protocols have been followed and when the court has regard of all the circumstances including whether the parties have made a part 36 offer, the court will allow cost a proportionately and reasonably incurred or proportional and reasonable in amount

Question 18

when deciding what order of costs to make, what 3 things does the court take into account?

Answer 18

The conduct of the parties

Whether a party has been partially or totally successful

Any offer of settlement made even if it’s not a part 36 offer

(this “conduct” is expanded upon to mean before and after proceedings and pre-action protocol)

DO NOT fall into the trap where an answer does not cover these 3 things fully, if one is omitted then the answer is tricking you - offers AND conduct AND success are the answer

Question 19

appeals

Answer 19

Permission to appeal from a district judge’s decision has to be asked of to a circuit judge before 21 days after the judgement

the appeal will be by
way of a review of the decision (unless the Court considers that it would be in the interests of justice to hold a re-hearing).

Question 20

Disclosure from external people to the claim

Answer 20

the court may order disclosure before proceedings have started and to a person who is not a party to proceedings - not always necessary to get a norwich pharmacal order

if the information is likely to support their case or adversely affect the case of the other party and disclosure is necessary to dispose fairly of the claim - court can order a person

Question 21

default judgement against a child

Answer 21

A claimant who sues a child if there is
no litigation friend may not without the permission of the court take any step in
proceedings except the issue and service of the claim form. CPR 12.10. The
claimant must make an application in accordance with Part 23 to obtain
default judgment against a child.

THE ANSWER TO THIS IN THE EXAM WILL RELATE TO THE FACTS OF THE CASE = look at whether the default judgment was authorised by accident or lack of info

Question 22

when does interest on the judgement sum?

Answer 22

from the date that the judgment was given, not from the date that it was served

Question 23

security for costs

Answer 23

The court has discretion and will have regard to all the circumstances before issuing it so if a defendant cannot afford it the application will be dismissed. -whether or not it is just

Court will not jeopardise potential for the party to defend if a cost order would hinder that

PROPORTIONATE PROTECTION

Question 24

what is a conditional order

Answer 24

Where a defence brought up in a summary judgement application is doubtful but cannot be ruled out

Gives the judge an opportunity not to dismiss the application for summary judgement immediately but also not to make a judgement based on the available information

means the judge doesnt want to make a decision just yet but its improbable that the defence will succeed

Question 25

what is the difference between a summary and a default judgement?

Answer 25

A summary judgement always requires a hearing where is a default judgement does not

A default judgement is relevant when the defendant fails to manifest an interest in defending the claim

A summary judgement is against the defendant who has shown an interest in defending but that defence has no real prospect of success and there is no other compelling reason to go to trial

Question 26

Discontinued claims

Answer 26

Only a defendant can set aside the discontinuance notice

the claimant needs permission of the court if they want to file another claim in respect to the same incident

Question 27

Part 8 claims

Answer 27

if an interpretation of a clause is called into question, even if there are no matters in dispute - they may be relevant for the judge to understand

claim form, witness statement and evidence should still be given to the court to help their decision

no CMC for part 8 claim

Question 28

Civil Evidence Act 1995
s.4 Hearsay
what are the things that are relevant to the weight of hearsay evidence?

Answer 28

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

FAILURE TO GIVE PROPER NOTICE AFFECTS THE WEIGHT

Question 29

When is a criminal conviction not admissible in a civil trial?

Answer 29

a. If it is not relevant to an issue in the case. CEA 1968, s. 11(1) requires the conviction to ‘relate’ to an issue in the case.
b. This is really the same point, but the defendant can avoid a conviction being relevant by admitting the allegation which the claimant relies upon in the Particulars of Claim as being the issue to which the conviction is relevant.

c. If the conviction has been overturned on appeal. CEA 1968, s. 11(1) requires the conviction to be ‘subsisting’.
d. Theoretically, a conviction could be excluded by the court using the discretion to control evidence in CPR, r.32.1.

Question 30

What is the latest time for serving a notice to admit facts?

Answer 30

No later than 21 days before the trial (CPR 32.18(2)