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FLK 1: Dispute Resolution > Topic 12 - Discontinuance and Trial > Flashcards

Topic 12 - Discontinuance and Trial Flashcards

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1
Q

What is the element of discontinuance in civil procedure?

A

Discontinuance is a way for a claim to end, where a claimant chooses not to pursue the claim against the defendant any further.

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2
Q

Who can discontinue a claim?

A

Only a claimant can discontinue a claim.

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3
Q

At what point can a claimant discontinue a claim?

A

The claimant can do so at any time.

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4
Q

Can a claimant discontinue part of a claim?

A

Yes, the claimant can discontinue part of a claim.

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5
Q

What are the two major consequences of discontinuance?

A
  • Ends the proceedings in relation to the claim/part of claim discontinued
  • Claimant liable to pay defendant’s costs up to the point of discontinuance
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6
Q

In what circumstances does a claimant need court permission to discontinue proceedings?

A

When the claimant has already received some sort of remedy, such as an interim injunction or an interim payment.

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7
Q

What is the procedure for discontinuance?

A
  • File a notice of discontinuance at court
  • Serve a copy on every party
  • Discontinuance takes effect from the date of service
  • A costs order is deemed to have been made in the defendant’s favour
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8
Q

What is the purpose of a pre-trial checklist?

A

To check compliance with case management directions and prepare the case for trial.

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9
Q

What must be included in a trial bundle?

A
  • Claim form and all statements of case
  • Case summary and/or chronology
  • All witness statements
  • Medical reports
  • Experts’ reports
  • Any other necessary documents
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10
Q

What is a skeleton argument?

A

A concise summary of submissions to be made in High Court trials, prepared usually by counsel.

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11
Q

What is the purpose of a reading list in a trial bundle?

A

To estimate the reading time the judge will need to prepare for the case.

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12
Q

What must parties do if a case settles before trial?

A

Notify the listing officer for the trial court immediately.

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13
Q

What is the role of notices to admit facts/documents?

A

To formally ask the other party to admit a factual point or the authenticity of documents.

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14
Q

What etiquette should be followed during a trial?

A
  • Dress formally
  • Stand when speaking
  • Address the judge indirectly
  • Refer to opponents appropriately
  • Stand when the judge enters or leaves
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15
Q

What is the order of events in a trial?

A
  • Claimant’s opening speech
  • Evidence on behalf of the claimant
  • Evidence on behalf of the defendant
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16
Q

Fill in the blank: A claimant is liable to pay the defendant’s costs up to the point of _______.

A

[discontinuance]

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17
Q

True or False: A claimant can discontinue a claim against only one defendant if there are multiple defendants.

A

True

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18
Q

What is the purpose of the pre-trial review?

A

To check compliance with previous orders and give directions for trial conduct.

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19
Q

What happens if a party does not admit a point in a notice to admit facts?

A

The evidence will be called at trial, and the judge will decide if the fact is correct.

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20
Q

What should a brief to counsel include?

A

Instructions to appear, a full set of trial documents, and a summary of the case.

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21
Q

What is a witness summons used for?

A

To compel reluctant witnesses or expert witnesses to attend trial.

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22
Q

What is a judgment or final order?

A

An order which ends the claim.

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23
Q

What typically occurs during the claimant’s opening speech?

A

Counsel describes the nature of the claim and identifies the issues to be tried.

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24
Q

What is the role of evidence in the claimant’s case?

A

Includes evidence of witnesses, real evidence, and documentary evidence.

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25
What is a leading question in cross-examination?
A question suggesting a particular answer, e.g., 'so you breached the contract by failing to deliver the goods on time?'
26
What is the purpose of cross-examination?
To challenge weaknesses in the evidence or the credibility of the witness.
27
What type of questions are used in re-examination?
Non-leading questions.
28
What is an interim order?
An order made at any time in a claim up to trial which does not finally conclude the matter.
29
What happens if a case is settled along the way?
A consent order is required, which must be approved by the court.
30
What does 'drawing up' an order mean?
Setting the order out in the formal document to be sealed by the court.
31
When does a judgment or order take effect?
From the date it is given or made, not served.
32
What is the general rule regarding costs in court?
'Costs follow the event' means the unsuccessful party pays the costs of the successful party.
33
What is the Debt Respite Scheme?
A scheme providing temporary protection from a judgment/order for some judgment debtors.
34
What is a disposal hearing?
A hearing to assess the level of damages after determining liability.
35
What is the typical duration of the breathing space in the Debt Respite Scheme?
60 days.
36
What must the judgment creditor do during the breathing space period?
Stop all enforcement action to recover the debt.
37
What is a consent order?
An order that records a settlement between the parties, indicating agreement on the terms.
38
What is the time limit for complying with a judgment or order for payment?
14 days, unless otherwise specified by the court.
39
What is the interest rate on judgment debts under the Judgments Act 1838?
8% per annum.
40
What is the procedure if the party responsible for drawing up the order fails to do so within 7 days?
Any other party may do so instead.
41
What should a legal representative prioritize during a trial?
Make as good a note of the proceedings as possible.
42
What is the purpose of a closing speech?
To refer to the evidence adduced and highlight inferences supporting the case.
43
What is the effect of a judgment regarding costs?
The court will decide the final costs order based on its judgment or final order.
44
What happens if the judgment is complicated?
The judgment is likely to be reserved for later delivery.
45
What is the document that sets out the order to be sealed by the court called?
Formal document.
46
True or False: A judgment is a public document immediately after it is made.
False.
47
Fill in the blank: The __________ allows a debtor to approach a debt advice provider for temporary protection from a judgment.
Debt Respite Scheme
48
What is the requirement for a party drawing up an order?
To file it no later than 7 days after becoming responsible for doing so.
49
What is the purpose of a split trial?
To separately decide liability and the level of damages.
50
What is a consent order?
A consent order records a settlement between parties, having the effect of a 'normal' court order without needing court arguments from both sides. ## Footnote A consent order indicates agreement on terms set out by the parties.
51
What are the two types of consent orders?
* Based on a contract * Not based on a contract
52
What is the difference between a consent order based on a contract and one not based on a contract?
The first is evidence of a contract and rarely interfered with by the court, while the second is merely an agreement that may be altered by the court. ## Footnote A consent order based on a contract usually involves a Tomlin Order.
53
What is a Tomlin Order?
A Tomlin Order is a type of consent order consisting of two parts: a public part and a confidential schedule with detailed agreement terms. ## Footnote It is used when parties want key terms confidential or when terms exceed what the court can order.
54
What does Part 1 of a Tomlin Order contain?
* Looks like any other consent order * Public * Contains actions enforceable by the court, e.g., stay of proceedings, permission to apply, detailed assessment of costs
55
What does Part 2 of a Tomlin Order contain?
* Generally confidential * Contains terms of agreement * Enforceable with a further court order * Enables provisions beyond limits of the dispute
56
What must happen for a consent or Tomlin Order to take effect?
They need the court's approval after the parties agree on the content. ## Footnote This includes applications to lift stays if settlement occurs during a stay.
57
When does a judgment or order take effect?
From the date it is given or made, not served. ## Footnote CPR 40.7 specifies this rule.
58
What is the time limit for compliance with a judgment or order for payment of money?
14 days, unless otherwise specified by the court. ## Footnote This is outlined in CPR 40.11.
59
What discretion does the court have regarding the execution of a judgment or order?
The court can allow a stay of execution based on new matters occurring since the judgment. ## Footnote CPR 40.8A allows for this discretion.
60
What can a party do if they want to set aside a judgment or order?
They may apply to have it set aside or varied, which can include appeals or various other reasons. ## Footnote CPR 13 specifically addresses applications to set aside default judgments.
61
Who can apply to have a judgment or order varied or set aside under CPR 40.9?
Anyone not a party but directly affected by the judgment or order. ## Footnote Examples include insurers of a party and banks served with freezing orders.
62
What does the slip rule allow the court to do?
Correct accidental slips or omissions in judgments and orders. ## Footnote CPR 40.12 governs this correction process.
63
What types of errors can be corrected under the slip rule?
Typographical errors and other defects, but not substantive changes. ## Footnote Errors in court orders must be corrected to maintain the integrity of public records.
64
What is the procedure for correcting mistakes in judgments or orders?
It can be informal, such as a letter to the court describing the error and the required correction. ## Footnote This is outlined in 40B PD 4.

FLK 1: Dispute Resolution (15 decks)

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