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.
