Unit 4 AOS2C Flashcards
(53 cards)
Supreme Court civil pre-trial procedure
Aim: to inform both parties of information that relates to the case- encourage an out of court settlement
If the case goes to court, the pre-trial civil procedure provides the court with information about the case before it begins
Aim of civil action
To restore the party whose rights have been infringed back to the position they were in before the infringement had occurred
Standard of proof
On the balance of probabilities
Civil action
Civil action arises because of a conflict between two individuals, groups or government.
Who brings the case
The case is brought by the party whose rights have been infringed ( the plaintiff) against the party who is alleged offences have infringed the rights of the plaintiff ( defendant)
Parties involved
Plaintiff and defendant ..
Plaintiff must consider
- Time and inconvenience involved in taking a claim through the court
- Costs involved
- Likelyhood of success
- Whether or not the other party has the ability to pay compensation
- larger companies try to settle cases out side of court to not gain publicity as it may be negative on the business
- consider the relationship between the other party
Civil Pre trial procedure
The Pretrial proceedings in a civil case involve the exchange of legal documents between the plaintiff and the defendant
Pre trial civil procedure
- Pleading: Originating writ Statement of claim Notice of appearance Statement of defence (Counter Claim) Further and better particulars - Discovery Oral examination Medical examination Documentation Interrogation. - Direction
Who initiates a civil action?
Why?
How is this done?
Party who has had their rights infringed will initiate civil action.
Their aim is to claim compensation to return them to their original position.
Done by contacting a lawyer who issues a ‘letter of Demand on the defendant’.
What does the letter of demand contain
- nature of the claim
- remedy being sought
- date of compliance
- statement. E.g: Failure to comply legal proceedings will be commenced
Purpose of Pleadings
To require the parties to state the main claims and defences of their case. This ensures the other side knows what the Claim or the defence is about.
To compel each party to state the material facts and particulars on which case they are relying and which form the basis of their claims and defence.
To give the court a written record of the case, which allows the court to understand the issues so it can manage the trial and pre trial procedures
To set the limits to the dispute, which enables other procedures such as discovery to be confined to the issues disputes
To assist in reaching an out of court settlement where appropriate
Counter claim
Defendant claiming that the plaintiff is partly responsible for their injury.
Purpose of Supreme Court Pre trial procedure
- They inform both of the parties of information relating to the case
- The parties can determine whether it is worthwhile to proceed with or defending case
- The parties find out the strengths and weaknesses of each other’s case
- They might lead to an out of court settlement
- They provide the court with information
- they might result in some issues being conceded and agreed
Writ
A document that explains to the defendant that an action is being taken against him or her , it informs the defendant where the trial will take place and the mode of trial ( which court and whether it be heard by a judge and jury) usually a statement of claim is attached.i
Issued by plaintiff or legal representative
Statement of Claim
Informs the defendant what the claim is
Notice of appearance
If the defendant wishes to defend the action, the first document he or she must file and serve is the notice of appearance this informs the court and the plaintiff that the defendant wishes to defend the claim.
Statement of defence
Sets out a respond to each of the allegations contained in the plaintiffs statement of claim. The defendant normally admits or denies the allegations. The purpose of the defence is to inform the court and the plaintiff of the reasons why the defendant is defending the case.
Further and better particulars
Optional step in the pleadings process.
A party may file and serve a request for further and better particulars of the other party’s claim or defence. This is a request for more details of the claim or the defence.
Directions Hearing
A brief hearing before a judge or an associate judge, and is a chance for the judge or the associate judge to discuss with the parties the progress of the case and give ‘directions’ to the party.
Takes place not less than 35 days after the defendant has filed an notice of appearance.
At any time a party may request that the court list the matter for a directions hearing if the party feels it is necessary for the judge or associate judge to give directions
Discovery
Enable parties to gain further information on Matters that remain unclear.
Purpose of discovery
- Require the parties to disclose all relevant material and documents to the other side
- Reduce the element of surprise at trial and avoid a trial by ambush
- Ensure all parties have copies of relevant documents
- Allow each party to determine the strength of the other sides case and determine their likelihood of success
- ensure that the parties and the court have all the relevant material and documents required to achieve a just outcome.
- in proceedings where the medical state of the plaintiff is in dispute, gives the opportunity to the defendant to have the plaintiff medically examined, this can reduce the time in court to dispute the ,education condition of the plaintiff.
- assist in reaching an out of court settlement where appropriate.
Documentation
- Common practise for the court to order the parties to make discovery as the first directions hearing.
- A party, once required to discover their documents must then prepare an ‘affidavit of documents’
- Documents include written documents, such as letters, emails, hand written notes and contracts, as well as videotapes, audio tapes, discs, films, or other recordings. If they are relevant to the issues in the dispute.
Interrogations
Interrogation is searching questions relating to the known facts of the case.
-Requiring any information that could be used as evidence