Trial

Question 1

re: witnesses

what information should Ws be asked for/given?

Answer 1

• Ws should be asked for dates to avoid and informed of the trial date asap

Question 2

re: witnesses

when is W availability given to the court?

Answer 2

• W availability is given on the DQ and in PTC

Question 3

re: witnesses

when might a witness summons be used?

Answer 3

• W can be summonsed to attend court/produce document(s) if they refuse; it is thought they won’t attend or they need evidence for their employer

Question 4

re: witnesses

what is the procedure for summonsing a witness?

Answer 4

• 2 copies of the summons must be sent to the court who will then serve 1 copy by 1st class post, unless the party specifically requests to serve it themselves

Question 5

re: witnesses

is court permission required to summons a witness?

Answer 5

Court permission is not required to issue a summon unless they are seeking:
o To issue a summons less than 7 days before the hearing
o To issue a summons for any day which is not a trial date

Question 6

re: witnesses

what is required for a summons to be effective?

Answer 6

For the summons to be effective, the party must offer the witness:
o A sum reasonably sufficient to cover their travel expenses; and
o Compensation for loss of time

Question 7

re: witnesses

what happens if a witness has been summonsed and they fail to appear?

Answer 7

• If W fails to appear they can be fined or, if in the HC, imprisoned for contempt

Question 8

re: witnesses

can an expert be summonsed?

Answer 8

yes, but this is rare

Question 9

re: witnesses

when might a summonsed witness make an application and on what basis?

Answer 9

• W can make an application for a summons to be set aside if they cannot give any relevant evidence

Question 10

re: witnesses

what is an unfavourable witness?

Answer 10

• they do not perform as hoped but for proper reasons i.e. they have genuinely forgotten a fact

Question 11

re: witnesses

what is a hostile witness?

Answer 11

they fail to come up to proof because they are unwilling to support the party who called them i.e. telling lies or refusing to answer

Question 12

re: witnesses

what can a party do in relation to a hostile witness?

Answer 12

o Party can ask the judge to declare them a hostile W.
o Counsel must prove W has no desire to see justice done nor to give evidence fairly.

Question 13

re: witnesses

what happens if the judge declares the witness hostile?

Answer 13

o If granted, counsel can then attack their credibility / cross examine them as if they are a W for the o/s (they cannot be examined about any pre-cons)

Question 14

re: witnesses

what is the key to determine if a witness is hostile?

Answer 14

o They key is how inconsistent their w/s is against their oral evidence.

Question 15

re: trial preparation

when is a pre-trial check list used?

Answer 15

• Used in all tracks except small. Completed by parties.

Question 16

re: trial preparation

what is a pre-trial check list also called?

Answer 16

a listing questionnaire

Question 17

re: trial preparation

what is the purpose of the pre-trial checklist?

Answer 17

• Purpose is to check directions have been complied with and case is trial ready. May include info like if an expert is not available on one day

Question 18

re: trial preparation

when must the pre-trial check list be filed?

Answer 18

• Must be filed no later than 8 weeks before the trial

Question 19

re: trial preparation

what will the judge do on receipt of the pre-trial checklist?

Answer 19

Judge will review PTC and decide if a hearing is needed (called a listing hearing on fast-track and PTR in intermediate and multi-track)

they will also (either on paper or at a hearing):
o Give a timetable and set a timetable for trial if necessary
o Fix the place of the trial; and
o Confirm the trial date / state the week in which it will begin

Question 20

re: trial preparation

what happens if both parties fail to complete the pre-trial checklist?

Answer 20

• If both parties fail to comply, the court will grant an unless order saying that unless the checklist is filed in 7 days the case will be struck out

Question 21

re: trial preparation

if the hearing is at least 10 days, what might the court do?

Answer 21

order a pre-trial review regardless of the PTC to check the progress of case

if so, the representative attending the hearing must be familiar with the case and have authority to deal with any issues that arise

Question 22

re: trial preparation

what are the bundle formalities?

Answer 22

• This should be indexed, paginated and no longer than 250 pages

Question 23

re: trial preparation

who prepares the bundle?

Answer 23

C but it should be agreed with the o/s

C should provide incidental copies to the o/s and witnesses

Question 24

re: trial preparation

when is the bundle to be filed?

Answer 24

• It must be filed between 3 – 7 days before the trial

Question 25

re: trial preparation what documents must the bundle include?

Answer 25

key documents, such as: o Statements of case o Case summary / chronology where appropriate o Requests for further information and responses o Witness statements o Notice of intention to rely on hearsay evidence o Experts’ reports and responses o Directions orders o Any other necessary documents containing evidence that a party intends to rely on * NB: a Part 36 offer would not be included in the bundle because these are made on a WPSATC basis

Question 26

re: trial preparation what is a case summary called in the high court?

Answer 26

skeleton argument

Question 27

re: trial preparation what is the position regarding case summaries in multi-track cases?

Answer 27

* In multi-track cases, each party should prepare a case summary.

Question 28

re: trial preparation what information should the case summary include?

Answer 28

it should be concise and include: o Submissions relation to each of the issues with reference to the evidence o Propositions of law to be relied upon o Identify key documents the judge should read before the hearing

Question 29

re: trial generally, where are multi-track cases heard?

Answer 29

* Generally, MT cases are heard by a CJ in the CC or by a HCJ in the HC

Question 30

re: trial excluding multi-track cases, where are all other cases generally heard?

Answer 30

DJ in the CC DJs can hear contested cases up to £25k. Permission from the designated CJ is needed to a DJ to hear cases above this limit.

Question 31

re: trial explain the key court room etiquettes

Answer 31

o Counsel stand when speaking in open court. They can be seated when the hearing is in chambers or before a DJ o C’s legal team on the right and D’s legal team on the left o Ws addressed by title and surname (child Ws are addressed by first name) o Phones off and no food to be consumed in court

Question 32

re: trial what are the modes of address

Answer 32

o District Judge > Judge o Circuit Judge > Your honour o High Court Judge, Lord Justice, Supreme Court Justice > My Lord/Lady

Question 33

re: trial when might a specific trial timetable be produced?

Answer 33

* For complex cases lasting several days, a specific timetable may be produced

Question 34

re: trial give a general overview of the order of play

Answer 34

1. preliminary issues 2. opening speech 3. examination in chief 4. cross-examination 5. re-examination 6. expert evidence 7. closing speech 8. judgment 9. remedies and interest 10. costs Normally C’s evidence, cross-examination and re-examination (+any expert evidence) is done and then this is repeated for D

Question 35

re: trial explain 'preliminary issues'

Answer 35

* Dealt with before the trial starts. May concern points of law but more commonly procedure i.e. permission to amend SOC (likely to fail as prior notice to the o/s is essential) or permission to adduce additional evidence

Question 36

re: trial explain 'opening speech'

Answer 36

* C briefly sets out the background and facts in issue, if permitted by the judge

Question 37

re: trial explain 'examination in chief'

Answer 37

* W asked to take an oath / affirm, identify w/s and confirm it is true. Every word is treated as have been said by W. * Normally no further questions. Permission is required to ask any questions (i.e. to clarify a point or give new evidence). * If permission is given for additional evidence, counsel can only ask open (/non-leading) questions (i.e. what did you see? What happened next)

Question 38

re: trial what are examples of open/non-leading questions

Answer 38

what did you see? What happened next)

Question 39

re: trial explain cross-examination

Answer 39

* Witness cross-examined by o/s or their counsel. * Counsel should challenge W’s version of events, otherwise it is treated as accepting the evidence and try to discredit W * Counsel can ask closed/leading questions

Question 40

re: trial what are closed questions? Why are they useful? give examples

Answer 40

i.e. which require yes/no answers This is a good way to control the witness i.e. ‘you didn’t have a clear view of D’s car, did you?’

Question 41

re: trial explain re-examination

Answer 41

* W may be re-examined by own counsel but only on points that have been raised in cross-examination, if this is necessary * Only open / non-leading questions can be asked

Question 42

re: trial explain 'expert witnesses'

Answer 42

* If there is oral evidence, the court may hear C’s expert evidence now or may order the experts give evidence simultaneously on an issue-by-issue basis

Question 43

re: trial explain 'closing speeches'

Answer 43

* D and then C will make a closing speech to summarise the law, facts and attempt to persuade the judge of their argument

Question 44

re: trial explain judgment

Answer 44

* Judgement delivered immediately or reserved to a later date if complex * Judgment takes effect on the day it is made, unless stated otherwise

Question 45

re: trial explain remedies and interest

Answer 45

* only relevant is C has won * Specified > total amount owed can be easily calculated * Unspecified > judge considers each category of damage to assess quantum * The judge will make a determination as to interest i.e. the rate and period

Question 46

re: trial what is the general rule on costs?

Answer 46

loser pays winner’s costs but the court can depart from this

Question 47

re: trial when should money awarded be paid?

Answer 47

* All monies to be paid within 14 days unless order says otherwise