Trials and Appeals

Question 1

When is witness availability given to the court?

Answer 1

In the directions questionnaires and also the pre-trail checklists.

Question 2

What is a witness summons?

Answer 2

Document requiring a witness to:

1) attend court to give evidence; and/or
2) proceed documents to the court.

Question 3

Should a witness summons always be sought?

Answer 3

Yes - unless expert witness as their availability is known and decided with counsel.

Question 4

What happens if a witness summons is not served with the correct amount of notice?

Answer 4

Court’s permission must be granted to serve if notice cannot be complied with.

Question 5

What is the notice period for a witness statement?

Answer 5

Must be served at least 7 days before date witness is to attend court

Question 6

Is a witness summons binding?

Answer 6

Yes.

Question 7

Give punishment for failure to comply with witness summons.

Answer 7

In CC - usually a fine.

If in HC - may be imprisoned for contempt of court or fined.

Question 8

Should a witness be paid for giving evidence?

Answer 8

Summons are served by the court, and the witness will be offered or paid:

1) Reasonable travel expenses; and
2) Compensation for loss of time which is reasonable to their circumstances.

Question 9

What happens if summoned witness fails to attend?

Answer 9

Judge likely sympathetic to adjourning the trial.

Question 10

Explain aim of the pre-trail checklists for cases in the fast track and multi-track.

Answer 10

Must be complied with by both parties.

Aim = ensures parties have complied with all directions and ready to proceed with trial.

Question 11

When should completed pre-trial checklist be filed with court?

Answer 11

No later than 8 weeks before trial starts.

Question 12

Explain steps judge takes once pre-trial checklists are received by court.

Answer 12

Judge reviews checklists, deciding whether further directions are needed/ whether review hearing is necessary.

This would be called a listing hearing on the fast track, and a pre-trial review on the multi-track.

Question 13

What happens if both parties don’t file pre-trail checklist in time?

Answer 13

Court gives both parties 7 days to file. After this any claims, defence or counterclaims are struck out.

Question 14

What happens if only one party fails to file their pre-trial checklist in time?

Answer 14

The court will fix a trial date.

Question 15

What is a pre-trial review and when is it used?

Answer 15

Can be used for trials set to last for 10 days +.

Allows judge to check progress of matter.

Parties’ representatives are expected to attend in order to resolve last minute issues pre-trail with the court.

Question 16

What happens after any relevant pre-trial reviews, and the pre-trial checklists have been submitted?

Answer 16

Court will:

1) give a time estimate and set a timetable for the trial (if necessary);
2) fix the place for the trial; and
3) confirm the actual date of the trial, or state the week within which it will begin.

The court then orders trial bundle of documents to be prepared.

Question 17

Who prepares the trial bundle?

Answer 17

Claimant.

Question 18

What is a trial bundle?

Answer 18

File of all documents the judge needs to decide the case.

It is common practice the bundle should not be more than 250 pages in length.

Question 19

When must the trial bundle be filed with the court?

Answer 19

3- 7 days before trial starts.

Question 20

List was the trial bundle typically includes.

Answer 20

• claim form and all statements of case;
• case summary;
• requests for further information and responses;
• witness statements ;
• notices of intention to rely on hearsay evidence;
• expert reports and responses;
• directions and orders; and
• all other necessary docs containing evidence that a party intends to rely on.

Question 21

Who should receive a copy of the trial bundle?

Answer 21

It will be filed with the court, but identical copies must be sent to all other parties and witnesses.

Question 22

Explain the case summary and what it will include.

Answer 22

Applicable for multi-track cases.

Assists court and parties indicating which points are still in issue, and nature of argument about disputed points

Contains a concise summary of:

1) chronology of claim;

2) factual issues which are agreed/not agreed;

3) relevant evidence needed to decide contentious points.

Question 23

Explain court room etiquette.

Answer 23

Witnesses called by surname ad title (eg Mr Jones);

Children are called by their first names;

Advocates stand when addressing open court, but sit if speaking in chambers;

Phones on silent and no food to be consumed in court.

Question 24

Explain modes of address.

Answer 24

Circuit judges - your honour;

District judges - judge

Judge in high court - my lord/lady

Lord Justice - my lord/lady

SC justice - my lord/lady.

Question 25

List the typical order of proceedings for simple multi-track cases and fast track cases.

Answer 25

1) Preliminary issues;

2) Opening speeches;

3) Examination in chief (usually just witness statement);

4) Cross examination

5) Re-examination;

6) Closing speeches;

7) Judgment

Question 26

Explain the preliminary issues stage of the trial.

Answer 26

Outstanding issues addressed prior to the trial starting (if not already done in pre-trial hearing).

Usually involves points of procedure (eg requesting permission to amend statement of case, or to adduce additional evidence).

Question 27

Explain the opening statement stage of the trial.

Answer 27

If permitted by the judge, claimant may make opening speech briefly setting out background and facts.

This is not always permitted.

Question 28

Explain the examination in chief stage of the proceedings.

Answer 28

Claimants witnesses usually called first.

As their statement is usually the evidence, witness usually just takes an oath to affirm their witness statement is true.

Permission of the judge must be obtained if witness is to speak further, but this is sometimes allowed.

In the event additional evidence is allowed, advocate can only ask the witness open questions (and not lead on matters which are in dispute).

Question 29

What is the procedure with when expert witnesses speak?

Answer 29

It will be given as directed by the court (ie either through statements or on the stand).

Traditionally C’s expert goes first, but judge may ask the experts to give evidence simultaneously (ie on an issue by issue basis).

Question 30

Explain the cross-examination stage of the proceedings.

Answer 30

C’s witnesses will be cross examined by the opposing party’s advocates once they have been sworn in any given any additional evidence.

Advocate will try to highlight inconsistencies/error in their evidence to undermine credibility.

Advocates may ask leading closed or open questions when cross-examining.

Question 31

Explain the examination of a witness.

Answer 31

The witness who has just been cross examined may be re-examined by their own counsel.

This allows them to clarify anything which was raised in the cross examination.

Even at this stage the advocate can only ask non-leading questions.

Question 32

Who makes the closing speeches?

Answer 32

After all evidence has been given and witnesses have been cross-examined, defence advocate makes closing speech.

Claimant’s advocate then makes a speech after the defence.

Aim is to summarise the law and facts in the most favourable light to convince the judge of the validity of their case.

Question 33

Explain the judgment and how it is delivered.

Answer 33

Judge can deliver judgement immediately if it is a simple matter, or reserve judgement till a later date for more complex cases.

Effect of the judgement is to bring the main proceedings to conclusion.

Judge will begin by determining liability (ie whether claimant haw established their cause of action) before going on to review evidence and provide reaonsing for their decision.

If defence wins, this is the end of the substantive proceedings.

If claimant wins, court must consider which remedies to grant (which is usually the payment of money - ie quantum).

Question 34

If the claimant wins a specified claim, compared to an unspecified claim, what happens?

Answer 34

Judge calculates the total for a specified claim.

For an unspecified claim, judge considers each category of damage the party is claiming in turn, and will rule on whether interest will be paid, the rate of interest and for what period.

Question 35

How is issue of costs dealt with once the judgment is given?

Answer 35

General rule is unsuccessful party pays costs of the other party. The court can make a different order though.

At the end of a fast track trial, costs are usually decided immediately.

At the end of multitrack trial, costs are usually dealt with at a separate hearing, unless an agreement can be reached easily at the end of proceedings.

Question 36

What happens where court orders payment of an amount of money?

Answer 36

It must be paid within 14 days unless the order specifies otherwise.

Question 37

When does the judgment take effect?

Answer 37

On the date it is given, unless the court specifies otherwise.

Question 38

What can make a witness potentially hostile?

Answer 38

They are unwilling to support the party who called them (ie refusing to answer or telling lies/ giving evidence which is different to that they put forward in their statement).

Judge must grant permission for witness to be hostile.

Question 39

What is the effect of a judge declaring a witness a hostile witness?

Answer 39

The advocate questioning the witness can attack the witness’ credibility, or cross-examine them as if they were a witness for the other side.

Question 40

How long does a party have to make an appeal?

Answer 40

They have 21 days to appeal against a County Court or High Court decision.

They have 28 days to apply for leave to appeal from the COAS to the SC.

Question 41

Explain why who hears the case in the high court makes a difference on which court will hear the appeal.

Answer 41

High court cases can be heard by either High Court judges, district judges or masters.

If heard by a High court judge, the appeal goes to the COA.

If heard by district/master, the case heard again in the High Court but by a High Court judge.

Question 42

Explain where appeals go from the county court.

Answer 42

Where appeal against a country court judgment is made the appeal will go straight to the high court if the case was heard by a circuit judge.

If the case was heard by a district judge, the case will stay in the county court and the appeal is then heard by a circuit judge.

Question 43

Explain the situations where an appeal from the county court will go straight to the COA (leapfrog) instead of the High Court.

Answer 43

Happens only on rare occasions.

Permission may be granted where the mater raises important point of principle or practice, or there is some other compelling reason how the court should heard it.

Question 44

Explain the situations where an appeal will go straight to the SC (leapfrog) from High Court.

Answer 44

Very unusual.

The issue would have to be deemed to have sufficient importance.

They will therefore only be allowed when the below requirements are both satisfied:

1) the grant of a leapfrog certificate has been made by the trial judge; and
2) the grant of permission to appeal is given by the SC

Such appeals therefore only arise where can invokes a point of law of general public importance concerning (for example) construction of a statue of statuary instrument, or a matter of national importance.

Question 45

Summarise grounds for granting permission (second appeal) to the COA.

Answer 45

Concerns decisions made in CC or HC which itself was an appeal.

COA grants permission if:

1) Appeal has real prospect of success + raises important point of principle or practice; and/or
2) There is some other compelling for COA to hear it.

Question 46

Summarise grounds on which any appeal may be granted.

Answer 46

Decision of lower court was wrong; and/or

Decision of lower court unjust because of serious procedural or other irregularity in proceedings of lower court.

Question 47

Summarise grounds for permission to leapfrog appeal to COA.

Answer 47

Appeal raises important point of principle or practice; and/or

There is some other compelling reason for the COA to hear it.

Question 48

Summarise how permission for first appeal should be obtained.

Answer 48

Apply to court which made decision at hearing when decision is made; or

Apply to appeal court (which would hear the appeal) by means of appeal notice.

Question 49

Summarise notice to appeal.

Answer 49

Any period as directed by lower court making decision; or

21 days after date of decision of lower court being appealed.

Question 50

Summarise grounds for granting PERMISSION for first appeal.

Answer 50

Court considers appeal would have real prospect of success; and/or

There’s some other compelling reason for appeal to be heard.

Question 51

Summarise leapfrog appeal from High Court judge to SC.

Answer 51

HC judge grans certificate confirming case involves point of law, of general public importance concerning:

1) Construction of statue/statutory instrument/ matter already fully considered by COA or SC; or

2) Matter of national importance/ consideration of such matter and result of proceedings is so significant that when considered alone/ with other proceedings, hearing by SC is justified/ benefits of earlier consideration by SC outweigh benefits of consideration by COA.