g e n e r a l d e f e n d e d c l a i m s
Directions hearing | Conciliation conference | Matters proceeding to trial | Experts | Offers in settlement
The purpose of the directions hearing in relation to general claims is to ascertain the status of the action and whether it should be referred for mediation or to make such orders as are necessary to expedite the prosecution of the action and to define and resolve the issues between the parties and to set a timetable for the conduct of the action.
After the directions hearing, you and your lawyer should now prepare for the next step in the litigation process, which is the conciliation conference. The court can give you a date for this about a month from the first directions hearing. Between now and the conciliation conference you and your lawyer should assess the evidence that you will be able to bring to trial and exchange information with the other parties. This is done through processes known as 'discovery' (listing all relevant documents) and 'inspection' (which allows each side to see the documents). Each party can ask for further and better particulars of the claim or defence. If other parties may have caused the problem that is the subject of the litigation, they can be joined by third party proceedings.
As a result of this process you and your advisers should have a good grasp of your prospects of success by the conciliation conference. The first purpose of that conference is to attempt to arrive at a settlement or compromise of the action. If that can be achieved, then the matter is at an end.
If the matter cannot be settled, then it will go to trial. The court will fix a trial date, usually about eight weeks after the conciliation conference.
The court will expect you to think about how to simplify or limit the issues for trial. Trials are very expensive and should focus on the real issues and not on peripheral issues. You should work out ways of avoiding calling unnecessary evidence and limit the number of witnesses.
The Magistrates Rules provide several ways of dealing with routine matters, for example: using a Notice to Admit Facts (Rule 76); witness statements (Rule 80); and affidavit evidence (Rule 99). Each of these procedures can bring evidence before the court without actually calling witnesses.
You can ask questions of the other side before trial (interrogatories), again to avoid the necessity to call evidence.
If you are going to rely on experts, it will be necessary to obtain a written report from them and give that to the other side at least three weeks prior to trial. It is highly desirable that experts’ reports be agreed. They are very expensive to call as witnesses.
It is very important that you make realistic offers to the other side to settle the matter. These should be formally recorded at the conciliation conference or else it can affect your entitlement to or liability for party/party costs. For further information, click here.
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