Civil Pre-Trial Procedures

Aims: Civil Pre-Trial Procedures To ensure both parties are informed about the details relating to the case through the exchange of documents They also inform the defendant that a legal action is being taken against them. Allows the parties to determine whether the dispute is worth pursuing May result in an out-of-court settlement Provide the court with information about the case before it begins

Aims: Civil Pre-Trial Procedures If the matter does proceed to court, then pre-trial procedures: Help to clarify issues Allow parties to prepare their case and provide information to the court and parties to reduce cost and delays at trial.

Difference between a ‘barrister’ and a ‘solicitor’ Plaintiff should first contact the other party to try and resolve the dispute (negotiation, ADR) If this is unsuccessful – contact a solicitor Solicitor – gives legal advice and prepares necessary documents Advise plaintiff of legal rights Advise plaintiff of chances of winning

Difference between a ‘barrister’ and a ‘solicitor’ Barrister is briefed by the solicitor (given information about the case) Barrister then further investigates the law relating to the case and represents the client in court

Letter Of Demand Solicitor sends a letter to the defendant outlines the claim against them suggesting compensation or another remedy If the matter is not resolved at this stage, legal proceedings commence

Pleadings Pleadings are the first stage of pre-trail procedure and include Writ Statement of claim Notice of appearance Statement of Defence Counterclaim (Replies) Further and better particulars (either party)

Pleadings Purpose of pleadings Parties state main issues of case Parties state the material facts they are relying on Gives court a written record of the case Saves court time and expense Provides an opportunity for out of court settlement

Writ Plaintiff’s legal representation issues a writ against the defendant Informs them that action is being taken against them Informs them of the place and mode of trial (mode – jury or not) States the specific remedy sought Compels the defendant to court by informing them that a default judgement can be made in their absence Writ is sent to court and served to defendant

Statement of claim Often attached with the writ is the statement of claim which explains the specific details of the plaintiff’s claim, such as the facts alleged by the plaintiff and the remedy being sought.

Pleadings Person wishing to defend the case must enter a ‘Notice of Appearance’ within 10 days to indicate that they have received the writ and will defend the case against them ‘Statement of defence’ is the response to the allegations made by the plaintiff in the ‘statement of claim’. This provides details of the defendant’s defence, including any allegations admitted or denied and their version of the facts.

Pleadings Plaintiff may issue a reply if they want to agree with the defendant or confirm a material fact Defendant may make a ‘counterclaim’ in return against the plaintiff. This is the defendant bringing a separate action against the plaintiff, suing them for damage or injury. The two matters are usually dealt with together Either party may demand further and better particulars (more detail) of the other party’s claim

Discovery The discovery stage is the next stage in pre-trial procedure and includes: Interrogatories Discovery and production of documents Oral examination Medical examination and provision of hospital and medical reports

Discovery Discovery procedure allows the parties to get further information on matters that may be unclear Focus is on gaining information about the facts of the case The hope is that one party may realise the other has a compelling case (thus promoting a settlement)

Discovery Interrogatories – Specific written questions served by parties on each other, relating to the facts of the case: Both parties may serve interrogatories on each other requiring information that might provide useful evidence. Parties must answer these questions, in writing, within a set time frame, usually 60 days. Any evidence can be used at trial to check the evidence of witnesses. Saves time in court by dealing with these matters outside of court

Discovery Discovery and production of documents: Notice of Discovery – both parties may request the other side to provide any relevant documents Some documents are protected by privilege (eg/letters between lawyers and clients)

Discovery Oral Examination – parties may request the other party to answer questions Conducted under conditions similar to a witness being questioned in examination-in-chief

Discovery Medical examination and provision of hospital and medical receipts If the plaintiff is claiming damages for bodily injury the defendant may request the plaintiff to submit medical records or undergo a medical examination by an expert

Directions Hearing Usually presided over by a judge Parties are given instructions or orders by the court to undertake certain actions that are necessary to prepare for trial (eg: dates by which they have to have performed a specific task) It is a standard practice that in the Supreme Court parties are ordered to attend compulsory mediation (promotes an early settlement)

Directions Hearings “at any stage of a proceeding the court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination” The Supreme Court (General Civil Procedure) Rules 2005

Notice of Trial and Pre-Trial Conference The final step before the trial is a notice of trial that informs all parties that the proceeding is ready for trial. Once the matter has been put on a list for trial, the courts may direct the parties to a pre-trial conference. This is used as another opportunity to promote a settlement or ensure the parties are ready to proceed to trial