Disputes Resolution 8: Trail & Appeals

Question 1

Process for settlement before trial

Answer 1

If in a way other than by Part 36 Order

Parties must:
- record terms of agreement including settlement costs in writing
- to be done in appropriately worded concept order (eg. Tomlin Order)

Otherwise no automatic right to payment, meaning no enforceable obligation to pay)

Question 2

Tomlin Order - Parts and Effect

Answer 2

Parts
- the order which confirms that parties have agreed settlement , that the case is stayed pending terms of settlement being carried out

• schedule confirming the amount and date of payment (and from whom)

Effect
- proceedings are stayed and can be resumed if non-compliance (rather than issuing new proceedings)

Question 3

When is a Pre-Trial Hearing used, what is it and when does it happen?

Answer 3

Generally used for multi track case. Purpose is make sure that everything is in place and avoid wasted time/delay.

Takes place at least 10 weeks before trial date.

Question 4

What might the agenda be at a pre trial hearing?

Answer 4

• Court may consider extent to which parties have complied with orders and directions,
• set a trial timetable
• set the number of experts and witnesses that may give evidence at trial.

Question 5

What is a case summary?

Answer 5

To be prepared and served before hearing by parties (together when possible) together with list of issues.
- should not be more than 500 words

Should include
- agreed facts
- what is in dispute
- synopsis of evidence that is believed to be required at trial

Question 6

Witness Summons (how to issue and effect)

Answer 6

How to issue
- party to send court separate summons for each witness + a copy
- court fee
- conduct money

• party must then serve summons at least 7 days before trial

Effect
- if witness fails to show then in contempt of court
- may lead to fine

Question 7

Rules for Conduct Money for witnesses

Answer 7

Must be sufficient to cover the travel cost and loss of income

Max amount of £67
- additional may be required subsidence or overnight stay

Question 8

Modes of Address for different judges

Answer 8

District (DJ) - Judge

Circuit (HHJ) - Your honour

Master - Judge

High Court (J) - My Lord/Lady

Court of Appeal (LJ) - My Lord / Lady

Question 9

Courtroom Etiquette

Answer 9

Attire
- Solicitor: suit, modest jewellery
- gown, collar (no wig) if solicitor advocate

Devices
- turned off
- use of phone or making recording = contempt of court

• bow to judge when entering or leaving
• Eating/drinking to be avoided
• must be courteous to all

Question 10

Who prepares Trial Bundle Rules and contents

Answer 10

Claimants solicitor to prepare copies for each party and one for witnesses and bear expenses

Must be filed 3-7 days pre trial

To include:
- info about parties
- case summary
- schedule of issues
- witness statements
- expert reports

Question 11

Trial Format Rules and General Process

Answer 11

Timetable to set how process will go, judge can depart from this

• opening submission (claimant then defendant)
• consideration of preliminary issues
• C’s witness evidence (evidence in chief)
• cross examination
  -re examination
• C’s experts evidence
• cross examination
  -re examination
• D’s witness evidence
• cross examination
  -re examination
• D’s experts evidence
• cross examination
  -re examination

Question 12

What questions are permitted during cross-examination vs re-examination

Answer 12

Cross examination
- leading questions; and
- non-leading questions

Re-Examination
- non-leading questions only

Leading questions: prompts desired outcome (ie. you did X didn’t you)

Non- Leading: typically start with how/where/what/when

Question 13

When will judge pass judgement

Answer 13

• immediately;
• after retiring briefly; or
• if need more time may reserve judgment and list matter for further hearing on date agreed

Question 14

What are ancillary matters after judgment

Answer 14

Interest - calculation of interest normally handed down in judgement

cost - normally losing party and handed down in judgement

Time to pay - party may make request for

Stay of execution - if intending to appeal party may request stay of execution

Permission to appeal -

Question 15

When / how can party discontinue claim? What effect does this have?

Answer 15

Generally must file and serve notice of discontinuance

May need to obtain permission if:
- active interim injunction
- active interim payment

Effect
- generally have to pay other sides cost for defending (subject to application of qualified oneway cost shifting)

Question 16

Who/how must you apply to for permission to appeal

Answer 16

No automatic right to appeal in civil law case so must seek permission.

Can apply to:
- court where decision was made (orally after judgment or in writing), or
- the appeal court (only in writing)

Question 17

Grounds for Appeal

Answer 17

1. The decision is wrong in fact, law or the exercise of court’s direction
   - eg. judge records key witness evidence incorrectly (fact)
   - applies law incorrectly (law)
2. the decision is unjust because of serious procedural or other irregularity in the proceedings

Question 18

If oral permission is not given can you still appeal in writing?

Answer 18

Yes, subject to the 21 day time limit from day judgement is formally handed down

Question 19

Time limit for appeal

Answer 19

Orally must be done immediately after judgment or order

In writing must be in 21 days of judgement is handed down (can ask for extension)

Question 20

What does the CoA consider for retrospective appeals (relief of sanctions)

Answer 20

Must be pursuaded it is reasonbale considering:

• The seriousness and significance of failure to comply with the rules
• why the default occurred, and
• Evaluation of the circumstances of the case (to deal with it in just manner)

Question 21

What is the process of the court considering an appeal?

Answer 21

normally considers notice and application without hearing.

• If granted matter listed for hearing for appeal to be heard.
• if not granted party can request oral hearing within 7 days of service of court order refusing permission (court need not approve this).

Question 22

What is looked at in the Appeal Hearing?

Answer 22

Limited to the review of the decision of lower court (not a full rehearing)

Cannot rely on new evidence (unless given permission)

Question 23

What is a ‘rolled up’ hearing in Appeals?

Answer 23

Where a court determines the application for permission and then considers apple in same hearing.