SQE Prep - Trial & Settlement Procedures PDF

DISPUTE RESOLUTION SQE prep 14 TRIAL NOTES Trial is the point at which the court will hear the evidence and determine the claim. As you have seen, the Civil Practice Rules are all about directing the efficient and effective...

DISPUTE RESOLUTION SQE prep 14 TRIAL NOTES Trial is the point at which the court will hear the evidence and determine the claim. As you have seen, the Civil Practice Rules are all about directing the efficient and effective prepa- ration of cases for trial. 14.1 SETTLEMENT BEFORE TRIAL If a case is settled before trial other than by one party ac- cepting the other’s Part 36 offer, the parties must record the terms of the agreement, including settlement costs, in writ- be ing, in an appropriately worded ‘consent order’. Without this 74 1e no t l l order, there is no automatic right to payment (that is, there is11 a no enforceable obligation on the paying party to pay). Often 91 d sh 8 e 74 in urs s the form of order used is a ‘Tomlin Order’, which is phrased b an 33- a fresh such a way as to avoid the parties having to institute l l co law 0 ht set of proceedings in the event that the agreed 8 -b termstoarea not i g carried into effect. d t y r -4 b r es op 7 8 e nt by c 14.1.1 Tomlin Orders b i 3 nd ted A Tomlin Order is in two parts: 3 a- I a 3 bc BR title, otec The order, which d c 6 confirms B A R that t s , theprparties s e. have agreed settlement and r: that theyhhaveragreed 1 terms e po that the case is g hof atheusettlement t i f 20 ll ic p r stayed pendingie 2 the r i being carried n out; and a h y r Ide ht ©wns of w r an rig I oconfirming seA schedule ywhat a ll d fothe amount to be paid, by whom, U and p R date thisolneeds to be paid by. , Co ARB rialsor s B aistenot dcapable of settlement, then it will proceed to If a case trial. m are sh Exam Tip The SQE may make reference to Tomlin Orders, as they are a common method of documenting settlement, so it is important that you have an understanding of what this means, as discussed above. The question might possibly provide a description of the order and ask you to identify what type of order it is, so keep these items in mind. 639 DISPUTE RESOLUTION SQE prep NOTES 14.2 PRE-TRIAL CHECKLIST AND HEARING 14.2.1 Pre-Trial Checklists Pre-trial checklists (court form N170, also known as listing questionnaires) are used by parties to litigation to inform the court of their preparation for the trial. The checklists are prepared by each party following the expiry of the date on which the last of the directions should have been complied with. So they seek to confirm what should have already been done, and: e Provide a last opportunity for the parties 1 e tb to re-estimate o the time for the trial; 74 ln al 1 11 s h Ascertain whether the parties will be legally represented; 489 se and 7 r Confirm the estimated 3- b length c ouof wthe s trial; and 3 l a Give the parties- o al ht l to prepare draft direc- b0 an topportunity tions for b s t yofrigthe court (if further directions d8consideration are-4required).ere cop 8 t y 3 They b7 shoulddbein filed b with the court no later than eight weeks a - n e d b c3 Bbefore , a ttrial RI tlethe e ct date or the start of the trial period. c 3 6d BAR t14.2.2 s , ti pThero ePre-Trial s. Review r : 1 igh Onareceipt re rpoof the parties’ pre-trial checklists in a multi-track t i fie 202 ll r iccase,h pthe u court may decide to hold a pre-trial review. The en © s a h n y w r I righ own ll of for apre-trial d t review is a case management conference listed for e hearing in the last stages before the trial is due to be heard. Us opy BRI ls, a old It will usually take place four weeks before the trial window C AR ria or s starts. The purpose is to ensure that the parties are ready B ate ed or will be ready for trial. The court may require the parties to m ar take steps to this end. The process undertaken by the court sh at the pre-trial review involves: Checking compliance with previous court orders: The court verifies that the parties to the litigation have com- plied with previous court orders and case management directions. Approving the trial timetable: The timetable might include: (1) directing that the issues in dispute are to be heard in a designated order at the trial; (2) issues relating to the admissibility of evidence in witness statements; and (3) measures for the parties to make use of any tech- nology at the hearing. 640  DISPUTE RESOLUTION SQE prep Setting case management directions which are re- quired for the trial: Directions might include (1) varying NOTES previous directions to accommodate changes in cir- cumstances; (2) ensuring availability of the witnesses and experts; (3) rectifying shortfalls in compliance with previous orders; and (4) preparation and filing of written submissions, if required. Preparation of trial bundles, including the allocation of responsibility for preparation and when the trial bundles are to be filed and served. Fixing a time and date for the trial, if it has not already e t be been fixed. 741 l l no 1 ha 9 11 s 14.3 WITNESS SUMMONS 7 48 r se and 3- b c ou ws 3 l t la l 14.3.1 Purpose of a Witness Summons - b0 a to righ d 8 t A party may ask the court to issue a summons b to compel s pya witness to attend court to give evidence 8 re They -4 at thetetrial. co 7 i n y must send to the court a separate 3b summons d fordeachb witness to be served plus one copy3of a-each (one I , a ct n for service e and one for the court file) together c with b B titl otR the court e e fee. Importantly, the party must also send 6 d3 an ARappropriate s , pr sum s e. to cover the c B t re compensating witness’s expenses ie r: in21attending r i gh h aand r po them for their loss of ttime—the i f 20 ‘conduct l money’, p u as we discussed in e n ©The conduct Section 12.2.3. s al himoneyc y n must be sufficient to cov- Id of er ther cost h n of wgetting t thewwitness r a to and from court and the e ri g o l l f o Us opythe amount I , a willldlose by way of income for attending, Rwitness C AR rialissoarmaximum although B there so amount (currently £67). There are additional B ate ed sums payable for subsidence or overnight stay. If the conduct m ar money is not included and tendered to the witness,stheh witness summons is not effective. 14.3.2 Effect of Serving a Witness Summons The effect of serving the summons is that if the witness then fails to attend, they will be in contempt of court. In the County Court, the likely outcome is that the court will fine a witness for their non-attendance. To be effective, a party must serve a witness summons on a witness at least seven days before the trial. A party may also affect service on an expert giving evidence in the case, and it is normally a requirement to issue a summons when seeking to call a police officer to give evidence at a hearing. 641  DISPUTE RESOLUTION SQE prep NOTES 14.4 ADVOCACY As discussed in the Legal System materials, solicitors are giv- en rights of audience in County Court and can appear in the High Court and Court of Appeal if they have undertaken an additional assessment to obtain Higher Rights of Audience. By ‘appear’ we mean the solicitor can present evidence, present legal arguments to the court, and examine witnesses. This process is known as advocacy, and the person doing it as the ‘advocate’. 14.4.1 Instructing a Barrister be e t 1a barrister (otherwise In many cases, a solicitor will instruct 74 client at trial/to l l no known as counsel) to represent1their a be the advocate. In this case, the solicitor 1 1 s h will generally sit behind counsel in court. 489 s e and 7 r -b ou ws 14.4.2 Modes0of 33Address a c l t la l When conducting - b to riitgish essential to address the d 8 advocacy, t 4b judge correctly. The s py mode of address depends on ecorrect 8 - e r o will know this by the way that the cyou the 7type of judge, n t and y 3b name i b (for example, if the application notice a -judge’s n d is written e d b RI Mr c3 Bstates l e , a case the te ct has been listed before Hill DJ, this means thatti pro eHill t or Ms. is a District Judge). The correct modes of 6 d3 AR address , s re os out in the table below (and are quite testable are set r : c 1 B ightonathe rp i f ie 02 l r h uSQE). nt © 2 s al hic ny p d e w TYPEeOF r I right WRITTEN o wn ll of for aABBREVIATED MODE OF MODE OF Us opy BRI lsTITLE JUDGE , a old WRITTEN TITLE ADDRESS IN ADDRESS IN C AR ria or s COURT (MALE/ CORRESPONDENCE B ate ed FEMALE) m ar District sh District Judge Hill DJ Judge Judge Hill Circuit His Honour Hill HHJ Your Honour Judge Judge Hill Master Master Hill Master Hill Master Master High Court The Honourable Hill J My Lord/Lady Judge Mr/Ms Justice Hill Court of The Right Hon- Hill LJ My Lord/Lady Lord Justice Appeal ourable Mr/Ms Justice Hill 642  DISPUTE RESOLUTION SQE prep 14.4.3 Courtroom Etiquette NOTES Courtroom etiquette is the name given to the set of infor- mal rules which govern how those appearing (in the case of advocates) and attending, in the case of a solicitor who is in court but not conducting the advocacy, should behave. It includes the following principles: Attire: Solicitors should dress formally, that is, wear a dark suit, formal shoes, and modest jewellery; solicitor advocates will also wear a gown, collar, and bands but not a wig, as this is reserved for barristers. e t be Electronic devices: These should be turned off. It is an 741 l l no offence punishable by contempt of court to use a mobile11 ha phone or record court proceedings. 9 1 s 7 48 r se and Bow to the judge when entering or leaving the-bcourt. 3 c ou ws 0 3 a l t la l Eating or drinking should be avoided in-bcourt. d 8 t to righ Be courteous to both the judge and b -4 your opponent. r es opyThis means waiting until it is yourbturn 8 7 to speak, e nt not c yinterrupt- 3 i b ing either the judge or your 3 a- opponent, I a ndreferring to the tedreferring to judge by the correct mode c of address, R , and c your opponent asdmy 3b friend, R B for t i tleexample, o te. “as my friend A s, p e r stated earlier. c. 6 r :.”.1 B ight are rpos t i fie 202 ll r ich pu 14.5 TRIAL I n de ht ©BUNDLE ns af wh any er bundle A trial s rig Imust ow abe for for all trials. In cases of ll oprepared y U op complexity, greater BR als, there s old may be more than one bundle, for C example, R ri or bundle, an authorities bundle, and a A atesubstantive B procedural a bundle. d m a re The claimant’s solicitor should prepare and bear h s the cost of a bundle for the Court and one for each party. The bundles must be filed between three and seven days before the trial is to take place. The trial bundle includes information about the parties, the case summary, a schedule of issues, witness statements, expert reports, and the like. 14.6 TRIAL FORMAT A trial timetable will be created to set out what will happen on the day of the trial and in what order. The judge ultimately has the discretion to depart from the timetable if they feel that it would be in the best interests of justice to do so. How- ever, in most cases, the trial tends to follow a similar format. 643 DISPUTE RESOLUTION SQE prep The usual trial format is as follows: NOTES Opening submissions for the claimant (by the claimant’s advocate); Opening submissions for the defendant (by the defen- dant’s advocate); Consideration of any preliminary issues; The claimant’s witnesses will give their evidence; The claimant’s experts will give their evidence; e t be The defendant’s witnesses will 1 their evidence; 4give no 7 l l 11 1will s ha The defendant’s experts 9 give their evidence; 7 48 r se and The claimant’s counsel -b willcomake u closing s submissions on 33 behalf of the0claimant; and l a finally w - b o al ht l b d8 The defendant’s s t t yrigwill make their closing submis- barrister 8 -4 sions. te re cop 7 in by - 3b Cross-Examination 14.6.1 n d d and Re-Examination 3 a I a te 3 bc BAfter R tleach i ec has given their evidence on behalf of the e, otwitness t r hase.called them, the advocate for the other party c 6d BAR tparty s , who p os r : 1 igh may a recross-examine. r p As we’ve already discussed in an earlier ie 2 r chapter, h p u normally, the signed witness statement stands as n tif 20 all hicthe y evidence in chief. For example, the written statement of a I de ht © ns f w r awitness n for the claimant will stand as their evidence. The de- e r rig ow ll o fo fendant’s advocate may then cross-examine, followed by any Us opy BRI ls, a old re-examination that the claimant’s advocate thinks necessary. C AR ria or s Re-examination is the process where the party’s advocate B ate ed asks their own witness questions on matters arising out of m ar cross-examination to try to restore the witness’s credibility on s h that point. EXAMPLE Cross-examination may have established that a witness to an accident normally wears glasses but was not wearing them on the day they witnessed the accident so under- mining their credibility. If the party who called the witness knows the witness wears glasses only for reading, they would want to re-examine the witness to get them to state that fact in order to restore their credibility. 644  DISPUTE RESOLUTION SQE prep Exam Tip NOTES Be clear as to the sequencing of and the difference be- tween evidence in chief, cross-examination, and re-ex- amination. Evidence in chief is evidence presented by the claiming party, cross-examination is done after direct examination, and re-examination is examination by the party who procured the witness. 14.6.2 Leading vs. Non-Leading Questions A leading question is a question that prompts or encourages e t be the desired answer (for example, ‘You went to Sainsbury’s 7 41 l l no that morning, didn’t you’? or ‘You took the bus to the football 1 a 9 11 sh stadium, didn’t you?’). A non-leading question is one that8 e d does not prompt or encourage the desired answer b 74 as, urs s (such an ‘What did you do on Monday morning’? ‘How did - travel co w 3you 3 0 question to the football stadium’? Generally speaking,-bany a ll t la beginning with how/where/what/when will d 8be non-lead- t to righ b s py ing. The difference is significant because 8 re coand -4 bothteleading non-leading questions are permitted 7 during icross-examina- n by - 3b arenpermitted tion, but only non-leading questions d d during re-examination. c 3a RI , a cte b e eB l t 6 d3 AR s, tit pro se. 14.7 JUDGMENT r : c 1 B ight are rpo e 2 lr h u n tifi 2of0 the At the conclusion al trial, h p icit isycommon for the judge to I e © d immediately t n s w a n proceedr righ ow ll o for tof giving their judgment or retire briefly e to sconsider U py BRthe I evidence a ld before returning for this purpose. ,that If theojudge C R feels i al s r sothey need more time to formulate their conclusions, r te they BA further omay ‘reserve’ judgment and list the mat- ter for a a e dhearing on a date agreed for them to ‘hand r m ajudgment. down’ their s h 14.8 ANCILLARY MATTERS After the judge has handed down their judgment, the parties may make submissions in relation to any other matters that flow from the judgment, for example: Interest—a calculation of interest will usually be made and included in the judgment order; Costs—the normal rule is that the losing party will pay the successful party’s costs. Any submissions regarding the costs of the action will be made when judgment is 645 DISPUTE RESOLUTION SQE prep handed down, including consideration of any factors NOTES which may lead the judge to a finding that the normal rules (costs following the event) should not apply (costs are addressed in more detail in Chapter 16); Time to pay—a party ordered to pay compensation may make a request for time to pay; Stay of execution—if it is the intention of the losing party to appeal the decision, they may request a stay of exe- cution of the judgment order (that is, a delay in enforcing the judgment); and e 1e otb Permission to appeal—the losing 74 party mayamake application for permission 1to1appeal the decision. ll n an 91 d sh 8 Exam Tip b 74 urses an 3 3- l l co law The format ofba0 trial is something a ht that may be exam- ined in SQE. - The question to g describe a trial that is b d 8 s t yrimay proceeding 4 anderask e whatop step would normally follow in 8- the7process. t c Alternatively, you should not be surprised 3 b d in by - to see a question n ted around the number of bundles to be 3a R I , aand lodged 3 c b Breal-life i t tecwho pays for them, as these reflect common le oissues t in dispute resolution. c 6d BAR ts, e pr ose. ie r: 21 righ ar rp n tif 20 all hich y pu 14.9 DISCONTINUANCE r Ide ht ©wns of w r an e rig o ll fo If a party decides that they want to discontinue a claim Us opy BRI ls, a old before trial, they must file and serve a notice of discontinu- C AR ria or s ance. In certain situations, a party must obtain permission to B ate ed discontinue, including when the court has granted an interim m ar injunction or when the claimant has received an interim pay- sh ment (unless the paying party consents). The consequence of discontinuing a litigated claim is that the claimant who has discontinued is liable to pay the costs of the defendant in defending the action, subject to the application of qualified one-way costs shifting. EXAMPLE A claimant is pursuing a claim for compensation arising from a road traffic accident. At an early stage of the claim, the defendant agreed to make an interim payment to enable the claimant to replace his vehicle and to stop an expensive 646  DISPUTE RESOLUTION SQE prep claim for hire charges continuing. The defendant made it very clear that they made the interim payment entirely with- NOTES out prejudice to liability and they would expect the claimant to repay it in the event that the claim was unsuccessful. The claimant issued proceedings but now, one month before tri- al, has decided to discontinue the claim. The claimant must file and serve a notice of discontinuance, which will require permission unless they return the money or persuade the defendant to consent. The consequences are that the claim- ant is liable to pay the defendant’s costs. e t be 741 l l no 1 ha 9 11 s 7 48 r se and 3- b c ou ws 3 l t la l - b0 a to righ d 8 t -4 b r es opy 7 8 e nt by c 3 b i 3 a- I a nd ted 3 bc BR title, otec c 6d BAR ts, e pr ose. ie r: 21 righ ar rp n tif 20 all hich y pu r Ide ht ©wns of w r an e rig o ll fo Us opy BRI ls, a old C AR ria or s B ate ed m ar sh 647 DISPUTE RESOLUTION SQE prep NOTES 15 APPEALS The party who loses at trial will often want to appeal if they believe the judge got the law wrong. The appeals procedure is essentially the same in the County Court, the High Court, and the Court of Appeal. It is different for appeals to the Supreme Court. 15.1 DESTINATION OF APPEALS The table below sets out the destination for appeals fromethe various courts, although it is possible e 1 tb to leapfrog to a higher o 74 court, if the court grants permission. ln l 1 11 s ha EXAMPLE 489 se and 7 r Mark (a builder) sues b 3- his customerc ou wJenny s for breach of 0 3 l l tl a a contract. The-bclaim is allocated d District Judge to in 8 Styles tfinds r i gMark’s favour.track h to the fast Jenny and at trial wishes to appeal 4b on theerbasis py believes Judge Styles did es oshe 7 apply 8 - the law i n t y cto quantum meruit correctly. Anynot relating b d dtobJenny receiving permission to appeal, a -3appeal, subject n c 3 R c te I be,toa a Circuit will e t. Judge, who will hear the appeal in the e d 3b RBCountyti tl rCourt. o 6 A s, p e r : c 1 B ight are rpos t i fie 202 ll r ich pu n a h y I de ht © ns f w r an s er yrig I ow all oDestination fo of Appeals U op BR ls, old C AR ria or s B ate ed m ar Courtsh Judge Decision Destination Any Circuit Judge County Court District Judge (bar insolvency) (County Court) Circuit Judge Any High Court Judge High Court Master Any High Court Judge High Court Judge Any Court of Appeal 648  DISPUTE RESOLUTION SQE prep Exam Tip NOTES To be able to state correctly the court/type of judge to which a decision will be appealed, it is necessary to know the type of judge whose decision is being appealed and not just which court made the decision. Therefore, when answering a question on this, fix on the judge who made the decision and not the court they were sitting in. e t be 15.2 PERMISSION TO APPEAL 741 l l no There is no automatic right to appeal in civil cases. There- 11 1 ha 9 s fore, a party wishing to appeal will always first need to apply for permission to appeal. A party can make an application 7 48 for rse and permission to appeal a decision: 3- b c ou ws 3 l t la l - b0 a o righ To the lower court where the decision d 8was made;t tor -4 b r es opy To the appeal court in the notice. 7 8 e nt by c 3 b i 3 a- I a nd ted 15.3 GROUNDS FOR B R tle, tec bc APPEAL 3 ti pro e. 6d BARforts,appealing There are only twocgrounds e osa decision of a lower court: er: 21 igh ar rp n tifi 20 all r hich y pu The decision court’s r h t ©wisnwrong Ide direction; s f win fact, or r an law, or the exercise of the o U se pyrigRI o , all ld fo Theo Rdecision B als is unjust so because of serious procedural or Cother i r BA atirregularity e d o in the proceedings. r re m could A decisionha be wrong in fact if the judge records key ev- s idence from a witness incorrectly in their judgment. It would be wrong in law if the judge applied the law incorrectly to the case–for example, by misunderstanding the law or applying it by considering themselves to be bound by a previous author- ity which is not in fact binding. 15.4 TIME LIMITS FOR APPEAL When appealing from a decision in the High Court or County Court, the appellant needs the permission of the court. The application for permission can be made orally, immediately after the judge has made the decision or given the order. 649 DISPUTE RESOLUTION SQE prep Alternatively, or if oral permission is not granted, a party may NOTES make a formal application for leave to appeal. 15.4.1 Time Runs from Handing Down The party must make the application within 21 days of the judgment or order that they are seeking to appeal. Time runs from the date that the judge formally ‘hands down’ the judgment or decision. It does not run from when the order is sealed. A party who requires more time to appeal must seek an extension from the judge. 15.4.2 Considered Without Hearing e t be Normally the court considers the 7 41 appellant’s o appli- noticel nand l cation without a hearing. If granted, 1 the matterhwill a be listed for a hearing for the appeal 9 11be heard. to If s not granted, and 48 s e n d within seven days of service 7 of the grant permission, the ur court -bappellantcomay s aorder refusing to request an oral hearing 3 w 3 ll t la as to why the court so that they can - b0make representation a gh the court is not required toOf rcourse, should grant d 8permission. t i to grant-4thisb request. r es opy 7 8 n e t yc b i b a -15.4.3 3 No dPermission n e d Sought 3 I a t 3 bc BIfnoRa trequest party i tle, odoes tec not seek permission from the lower court and 6d BAR t21-day, pperiod r fore.an extension of time is made, then once the s r : 1 igh are rpos has expired, they can no longer make applica- c t i fi 202 ll r iction e h to p uthe court for permission to appeal. However, a party n a h may ny apply inretrospectively. an appropriate case to the Court of Appeal for de ht © ns f w r apermission e r rig ow ll o fo as an application for relief ofThe I Court of Appeal treats this sanctions and, therefore, the Us opy BRI ls, a old appellant must persuade the court of its reasonableness, C AR ria or s applying the following considerations: B ate ed m ar The seriousness and significance of the failure to comply sh with the rules; Why the default occurred; and Evaluation of the circumstances of the case, so that the court can deal with the application in a just manner. 15.5 PROCESS ON APPEAL A party wishing to appeal must send an appeal form to the court, together with a copy of the sealed order, the subject of the appeal, and the application notice. This will specify the grounds on which the appellant is making the appeal. The 650  DISPUTE RESOLUTION SQE prep respondent may also cross-appeal using a similar process. If they do not wish to cross-appeal, and they simply want the NOTES court to uphold the original decision, they do not need to do this. 15.6 THE APPEAL HEARING The hearing is limited to a review of the decision of the lower court. It will not consist of a re-hearing. The court will not per- mit a party to rely on evidence that was not available at the original hearing, without permission. The court may deal with an appeal as a ‘rolled-up’ hearing, that is, determining the e t be application for permission and then considering the appeal in 741 l no l the same hearing. 11 sh a 91 7 48 r se and Exam Tip 3- b c ou ws 3 l t la l It is unlikely you will be examined in depth - b0on the ap- a to righ peals process at the SQE, but you need d 8to understand t these basic principles: -4 b r es opy 7 8 e nt by c 3 b i The fact permission will3be a- required; I a nd ted 3 bc BR title, otec The limited bases AR ts,a judgment 6donBwhich p r ecan. be appealed; c h are rpo s The type fof e r: 21andrigthe judge i 0 l hcourt uwhich will hear the ap- nti © 2 s al hic ny p peal; eand d ht n f w r a eWhatr I rievidence g I ow isll allowed o fo on appeal. s y U op BR ls, old a C AR ria or s B ate ed m ar sh 651