Timing of evidence in civil cases

summereire

Hi,

My understanding from my studies so far is that a summons is responded to by a defence, then in turn the plaintiff issues their response to this and sets out the case in even more detail and then the defendant responds to this. Is that correct so far?

What I'm wondering is at what stage to details of evidence need to be introduced? Can the defence for example reasonably expect, by Notice For Particulars, for specific details such as dates, times, maps, photos etc even before they have responded to the summons or is this only possible at a later point?

I can see the defence being interested in gaining as much of this information as soon as possible, before they say anything such as in their defence response to the summons, as then they can craft their reply around what they know the plaintiff knows and doesn't know. However equally on the other side I can see how the plaintiff would rather have a response to the basic facts in the case before providing too much detail.

This is all for purely academic purposes by the way, your helps and ideas on how this normally works in practice are much appreciated- it's all very interesting if a little inaccessible!

Tom Young

Well yes, though it depends on the nature of the proceedings. There are various different types of summons for example.

A Plenary Summons (High Court), Equity/Civil Bill (Circuit Court), Civil Summons (District), etc. Is usually responded to by a Notice for Particulars on the pleadings or a Defence, or a combination of both.

Often, Particulars on the Pleadings will be required to know what case either side must answer. Though, it is not a bar to delivery of a Defence, it is reasonable to suggest that a Notice for Particulars be answered before a Defence is sought. In the District Court a Notice of Intention to Defend is filed and can contain a full Defence and Counterclaim.

Evidence usually arises in the process of Discovery, after the pleadings have closed - Defences are in.

In summary/special summons the evidence arises immediately, usually on oath or affidavit.

I'm not going to say much more, because books have been written on same.

johnnyskeleton

summereire wrote: »

My understanding from my studies so far is that a summons is responded to by a defence, then in turn the plaintiff issues their response to this and sets out the case in even more detail and then the defendant responds to this. Is that correct so far?

No. A summons is issued (in the high court, followed by a statement of claim) which is required to set out in general terms each point of facts that the plaintiff intends to prove. If this is not specific enough, the Defendant can ask for further and better particulars.

In any event, the Defendant will put in a defence addressing each of the points of fact raised by the Plaintiff and setting out any other facts which they will rely upon in their defence. Occassionally (very rarely in fact) will a Reply be required to a defence and only then it will relate to any exceptional issue arising from the defence, the classic example is where the defendant relies upon the statute of limitations and a reply is required to set out the facts as to why the claim is not statute barred.

summereire wrote: »

What I'm wondering is at what stage to details of evidence need to be introduced?

In civil cases other than in the commercial court, at the trial itself. Discovery/inspection of documents or places can be sought, and in some cases expert reports need to be exchanged and a list of experts be provided, but there is never a requirement to set out in any great detail the proposed evidence.

EDIT: And of course, as Tom points out, evidence will be given in advance in all trial on affidavit such as summary debt collection, judicial review etc.

There is a distinction between the facts that you intend to prove i.e. that your car crashed into mine, and the evidence you will use to prove those facts i.e. both myself and my wife saw you crash into us and we have CCTV and an engineer's report to back it up.

summereire wrote: »

Can the defence for example reasonably expect, by Notice For Particulars, for specific details such as dates, times,

Yes and yes.

summereire wrote: »

maps, photos etc

No and no, although discovery can be sought of any documents in the plaintiff's power or possession.

summereire wrote: »

even before they have responded to the summons or is this only possible at a later point?

A notice for particulars can be raised at any stage and is usually raised before the Defence is filed. It does not stop time for a defence being filed though.

summereire

Ok, yeah that makes sense. And is this how it works, say in the case of a plenary summons; summons -> defence -> response by plaintiff setting out case in more detail -> reply by defence finalising defence...

...and then presumably the plaintiff at that point takes it to court if they are not satisfied / a deal has not been reached, and then the discovery process commences?

As far as good books are concerned, I've been recommended these two, would they be good do you think on this particular topic?

Practice and Procedure in the Superior Courts, O'Floinn
Civil Procedure in the Superior Courts, Delany

They are extremely expensive to buy, and I won't have college ID until later this year so can't access libraries.

Thanks!

johnnyskeleton

summereire wrote: »

Ok, yeah that makes sense. And is this how it works, say in the case of a plenary summons; summons -> defence -> response by plaintiff setting out case in more detail -> reply by defence finalising defence...

no. Plenary summons & statement of claim. Then notice for/replies to particulars, then defence, then (in an unusual or complex case) a two line reply then done.

Statement of claim is as detailed as it should get (if done right) and a defence will have the entire defence case set out in it. Forget about replies are they are very rare and quite technical. There is no second bite of the cherry.

...and then presumably the plaintiff at that point takes it to court if they are not satisfied / a deal has not been reached, and then the discovery process commences?

discovery starts (usually) after the defence is delivered but before the case is set down for trial. It's an interlocutory application.

As far as good books are concerned, I've been recommended these two, would they be good do you think on this particular topic?

Practice and Procedure in the Superior Courts, O'Floinn
Civil Procedure in the Superior Courts, Delany

They are extremely expensive to buy, and I won't have college ID until later this year so can't access libraries.

Thanks!

don't worry about buying any books for the moment. Unless it's kings inns you won't be doing practice and procedure at the level where those books become necessary and most such courses will provide you with a handout telling you what you need. The books tend to go out of date very quickly too.

If you really want to read more about it, go on to the courts website and read the rules of court. They're free

summereire

Brilliant, that's hugely helpful! I somehow seemed to have misunderstood the pleading process, thinking there were two layers to it, when in fact I see that there are just two fundamental steps: the summons and the defence, with any other correspondence just being to support these two.

I'm reading the court rules at the moment, very interesting. I'm not actually studying law at the moment, but resolution, so in September I'll have access to the library at UCD presumably they'll have some good books I can look at then.

One other question; I basically get pleading, and I basically get trial, but transition from one to the other is done as I understand with the interlocutory application you mentioned. Is that just a form, or are there other appearances in the courts that need to be made before the actual trial itself begins and the witnesses are needed etc, and how is the time allocated for that in high court cases with a plenary summons, so there is enough time to deal with the matter?

McCrack

Once pleadings (High Court personal injury) have closed you set the matter down for trial, exchange expert reports (Disclosure Schedules, SI391/98) and subpoena witnesses if necessary.

johnnyskeleton

If you're doing a degree in law in ucd you will probably not need to know anything about procedure

summereire

Thanks. No I'm not actually doing a law degree, my focus is on resolution, and I'm comparing and contrasting legal process with non-court based forms of resolution. I'm basically interested in the number of steps in the system.

How are the high court dates scheduled given that presumably no one knows for sure how long case will run on for?

johnnyskeleton

summereire wrote: »

Thanks. No I'm not actually doing a law degree, my focus is on resolution, and I'm comparing and contrasting legal process with non-court based forms of resolution. I'm basically interested in the number of steps in the system.

How are the high court dates scheduled given that presumably no one knows for sure how long case will run on for?

Lawyers estimate the amount of time and there will usually be a few cases and a few judges to pick up the slack.

One thing to note is that while court processes may often be drawn out and expensive, that does not mean that ADR can solve these problems. An arbitrator costs money but a judge is free and there is no reason why a complex dispute cannot take just as long to arbitrate than to hear in court, or if there were it would be by taking one side short.

summereire

Yes, that's the question I'm really looking at at the moment, it really seems that there is a huge overlap between all of the various forms of resolution, yet all too often (with a few exceptions) the processes of resolution are all quite separate and linear.

I'm exploring models of making the system more dynamic, than linear, so that as much can be achieved with as little inefficiency as possible. Your point about the value of the court system - i.e. a judge being free - is well taken however it would seem that makes arbitration often less appealing, when instead it may be preferably to see a different less costly model of it in place on one rung of a ladder leading into high court action rather than one or the other.

I know it's a big area and any musings on this are very much welcome! Is the amount of time needed for the case and any other details calculated in the interlocutory application or is there any point, before the actual trial itself, where either side need to go into the courts and arrange these things verbally?

johnnyskeleton

Contrary to popular opinion it is often the lawyers who reduce the amount of evidence to be heard, procedural steps etc and this primarily takes place outside of court.

There are some case management systems but even these have their flaws.

Really the only solution to waiting times in court are more judges, more registrars, more courts and longer sittings.