Unit VIII procedure and evidence

READING MATERIAL

Text A Civil Procedure

Task: read and translate the following text.

The term "procedure" covers all the steps necessary to turn a legal right into a satisfied judgement, it does not merely refer to the trial itself. The proceedings prior to trial take much time and often result in a settlement being reached before any trial takes place. Proceedings after trial may also take time, for example appeals procedure and enforcement of the judgement.

The basic steps involved are as follows:

1. The action is begun by issuing and serving a writ.

2. The defendant acknowledges service.

3. An exchange of pleadings takes place.

4. Preparation is made for the trial, including discovery and inspection of documents.

5. The trial.

6. If there is no appeal the matter is concluded by enforcement of the judgement.

The usual method of commencing an action is to issue a writ. This places matter on official record. A copy of the writ must be served on each defendant either personally or by some other means such as service to his solicitor. Some actions are commenced by a petition rather than a writ, for example a divorce or a company liquidation. If a person on whom a writ is served proposes to enter a defence he must, within 14 days of service of the writ, deliver an acknowledgement. The form of acknowledgement is served by the plaintiff with the writ. After acknowledgement service the defendant has further 14 days for which to file a defence.

The object of pleadings is to define the area of contention between the parties. A pleading must contain a brief statement of the facts relied on, but not the evidence by which they will be proved. If a matter is not included in the pleading it cannot usually be raised at the trial. The first pleading contains the statement of claim made by the plaintiff. The second – the defendant's answer, the defence. If the defendant has a complaint against the plaintiff he may include a counterclaim with his defence. Then comes the reply, the plaintiff's answer. If either party needs more information he may ask for further and better particulars of specific matters.

If the defendant fails to acknowledge service or if he fails to serve a defence the plaintiff may obtain a default judgement without the necessity of restoring to a trial. If the plaintiff feels that there is no defence to the action he may apply for a summary judgement.

Between the close of pleadings and trial much preparatory work must be done by the parties' solicitors. Documents relevant to the dispute are inspected, such matters as the date and venue of the trial are fixed and the number of expert witnesses that may be called by each side.

The trial starts with the plaintiff's barrister outlining the issues involved and calling the witnesses. The defendant's barrister then outlines his case and calls the evidence for the defence. Next the defendant's barrister and then the plaintiff's barrister will make a closing speech. Finally the judge gives the decision in the form of a reasoned judgement which may be delivered as soon as the case is concluded, or reserved to a later date if the judge wishes to consider the case further.

The final stage is enforcement of the judgement. If the defendant does not pay a judgement debt the latter is recovered from the proceeds of selling the debtor's goods or land.