CC Pre-Trial
County Court Proceedings
Where an intention to defend has been entered and served, the defending plaintiff must wait until 21 days after all interlocutory matters are concluded and the action is ready for hearing. He may then lodge a certificate of readiness and estimate the likely length of the hearing. The listing officer will fix a date for the trial.
A notification of listing is given. If this is unsuitable, notice may be given within seven days seeking alternative dates and seeking or giving agreement with the other party. If six months have elapsed after the intention to defend and the plaintiff has not lodged a certificate, the Chief Clerk must list the action for the parties to attend before a Judge.
The Judge may give directions on the conduct of the action or order it to be stayed or dismissed. On attendance before the Judge, the County Court Judge sits on the bench alone with the Chief Clerk or other official before him. The Judge determines the order in which proceedings are heard. A skeleton argument is not usual .
A list of case and statutory provisions to be used should be exchanged between counsel before trial and given to the Judge’s tipstaff. In a contested case, counsel for each party announces his position therein.
The Plaintiff’s list gives up the complete set of pleadings and other relevant documents. In the High Court, the Plaintiff begins, and the Plaintiff and Defendants would address their evidence and have the right to make opening and closing speeches. The Plaintiff has the last word. If the Defendant provides new evidence, he makes only one speech, which comes last.
In the County Court, speeches are shorter unless formal. In simple cases, there may be no speeches except for discussion on Plaintiff law or inferences of facts as they arise.
Interlocutory proceedings are pre-trial applications to court in connection with the main proceeding. An application is made to court by giving notice to the other party. Generally, these proceedings will take place at a point at which a court, each side is represented by solicitors.
Notice must be given at least two clear days before the application. Generally, interlocutory applications are heard at certain times of the week in certain districts. Evidence is usually given verbally or by affidavit if directed. A supporting affidavit and exhibit must be lodged at least two days before the hearing.
In certain types of cases, an application is made without notice to the other side. These are generally cases of necessity, such as for substituted service or where the application is necessary to avoid irreparable or serious damage, such as an emergent certificate. In an emergency application, full and frank disclosure of all relevant facts must be given.
Motions may be heard by a County Court Judge or District Judge by the direction or consent of the County Court judge. The Judge or officer makes an order on the application as is appropriate.
An injunction may be applied for in an interlocutory or pre-trial application if it is necessary to preserve a position before a full hearing. The principles are similar to those applicable in the Republic of Ireland. The applications are made on affidavit.
Applications may be made for inspection of preservation of property to enable the successful party to recover it intact or to make it available as evidence for inspection. Applications for inspection of documents may be required where this is necessary or it may become a question in subsequent proceedings.
Discovery, an application for discovery involves a disclosure of a list of relevant parties and for the purpose of an inspection. There is no automatic discovery in the County Court. Either party may apply for discovery.
If the order for discovery is not complied with, an application can be made voluntarily for the discovery to be sought. If the document is not voluntarily given, an application for requesting discovery may be made to the Chief Clerk. The Chief Clerk or judge may order discovery to be verified by an oath.
Discovery is only ordered to the extent necessary for fairly disposing of the proceeding. The onus is on the party who resists discovery. The Court considers the application on the basis of the pleading.
Discovery must duly be given an oath. It must be verified by affidavit.
An order may be given striking at the proceedings in the fault of compliance. Discovery is given by way of a list in a format. It must verify items willing to be disclosed on those which an objection is made and those no longer in possession.
A valid ground of objection must be stated. This must be something such as privilege, irrelevance, nothing available, no longer available. It is the duty of the party making discovery to strictly to comply, gives strict obligation.
If the applicant suspects the list is not full, he may apply for discovery of specific documents or classes of documents, apply for inspection of documents not listed, ask the Judge to inspect allegedly privileged documents, or apply for further and better discovery.
A party who has applied for discovery must be allowed inspecting to take copies of documents in the first category. Documents must be made if the person does not produce the documents; in order for their production, an application maybe made to the court to order their production.
Interrogatories are questions delivered in writing by one person party to the other required to be answered on oath. Interrogatories must be relevant to the matter in question and be necessary for properly, fairly disposing of proceedings and saving cost.
An application must be made for leave to serve interrogatories. Leave is only given where this is necessary for fairly disposing of proceedings or saving cost. Interrogatories must be in relation to facts which are relevant to material issues in the dispute.
It is not necessary in relation to a matter which can be proved by a witness who will be at trial. Fishing is not allowed. Interrogatories must be answered in affidavit and filed. If a respondent objects on the grounds of privilege, he must claim it. All questions rather than information including hearsay must be answered.
There are special rules in respect of personal injuries or death. An application can be made for discovery against a third party who has had documents in his possession. It must be shown that the person concerned on the application has relevant information.
There are certain provisions in respect of disclosure of medical reports and evidence in personal injury cases. In personal injury actions, the defendant is generally allowed to insist that his medical expert examines the plaintiff. The defendant must pay his cost in that handling, and the doctor should not give an evidence or statement in relation to liability by plaintiff.
Under the court’s inherent jurisdiction, parties must disclose medical evidence resulting from the examination of the other party within 21 days of receiving it or before a trial, or if received during the trial immediately.
In actions for damages or personal injuries, medical evidence including reports and supplemental documents from experts, surgical, radiological evidence proposed, and other medical evidence proposed produced on trial must be served. The party must then give details of doctors and hospitals who gave treatment. These positions may apply regardless if other evidence is to be produced at Trial.
A party proposing to rely on medical evidence must disclose all relevant person important to adduce at the trial. Many medical experts must disclose all relevant medical evidence obtained by him from that expert within 21 days of receiving it. The party does not have to disclose a report which is not helpful to its case.
Payments can be made into court by the defendant. It is not taken as an admission of liability. It is not disclosed to the Judge.
The general time for making a lodgment is up to 28 days after notice of defense intention to defend. In personal injuries actions, it is 28 days after the plaintiff will serve medical evidence supporting injuries alleged. This is extended in certain circumstances. After the relevant time limits have expired, lodgment can only be made by consent or by lien of the court. Monies paid in must actually be lodged in court.
The plaintiff may accept the lodgment within 28 days; after that time, the consent of court is required. On making a lodgment, the plaintiff tends to undertake the plaintiff cost and expenses reasonably incurred up to the date of lodgment.
If not accepted, the monies remain in court. They may be used if the party settles for a higher sum. If the plaintiff wins and sees more than the lodgment, he gets judgment with full cost and money paid out; the court is paid in partial satisfaction.
Where the lodgment is not accepted and the plaintiff does not recover more than is, the defense is only entitled to a reduced scale fee for solicitors and counsel. The plaintiff entitled to reduce the cost, and defendant has an entitlement to cost in a certain proportion.
A so-called Calderbank offer can be made without prejudice save as to cost. This can be brought to the trial judge’s attention when considering costs. This may be made in a case other than for money, such as injunction or specific performance (or wider).