Trials and Appeals Flashcards
(28 cards)
Where will details of the witnesses attending trial be noted?
Witnesses should be asked about dates they can’t attend + be advised of trial date ASAP
Details of W’s availability must be given to the court on the direction’s questionnaire and in pre-trial checklists
What is a witness summons used for?
If there is any doubt about a witness attending, a witness summons should be sought
This document is issued by the court and requires W to:
- Attend court to give evidence; and/or
- Produce documents to court
When does a witness summons need to be served and what must be offered with the witness summons?
Should be issued and served at least 7 days before attendance required, otherwise court’s permission needed
- If time limits met, it is binding, and W may be fined or (imprisoned for contempt (HC only))
Court usually serves it, and W must be offered/paid:
- Reasonable sum to cover travel expenses; and
- Compensation for loss of time - The prescribed sums payable to a witness attending the Crown Court apply
These sums must be deposited at court office when they ask the summons to be issued
If the party themselves wishes to serve a witness summons, instead of the court, what differences to the process are there?
Witness summons is issued and served by the court by 1st class post, unless the party indicates in writing that they wish to serve themselves when the court is asked to issue the summons
If the party serves the form, they must offer the funds/monies at time of service
Before trial, counsel should be briefed to be prepared, and all CPR steps must be completed + court orders/directions complied with.
Additionally, listing questionnaires (pre-trial checklists) must be fully completed pre-trial by parties in fast, intermediate and multi-track cases.
What is the purpose of the listing questionnaire?
It ensures parties have complied with all directions and the trial is ready to proceed
Must be filed at court no later than 8 weeks before trial
Judge reviews them to decide whether further directions are needed and whether a review hearing is needed
- Called a listing hearing on fast track
- Called a pre-trial review on intermediate and multi-track
If neither party completes, court will order that unless one is filed within 7 days, the claim, defence and counterclaim will be struck out
If one party completes, court will fix a hearing to ensure trial readiness
When might a pre-trial review be needed?
Where trial expected to last longer than 10 days, or the case is complex, a pre-trial review allows the judge to check progress and to resolve last minute issues
A legal representative, familiar with the case and with authority to deal with any issues that may arise, should attend for each party
After checklists filed and pre-trial review (if needed) held, what steps will the court take next?
The court will:
- Give a time estimate and set a timetable for trial
- Fix place of trial
- Confirm date of trial
- Order a trial bundle to be prepared
What are trial bundles, who prepares them and when are they filed?
This is an indexed and paginated file of all documents the judge may need to decide the case
- Should be no longer than 250 pages in length
Claimant or their lawyers prepares the bundle, but the contents should be agreed where possible
- They have responsibility for the preparation and production, even if someone else actually makes/prepares it
Must be filed between 7 and 3 days before start of trial
Must give each party an identical copy of the bundle
What documents ought to be included in the trial bundle?
Include key documents such as:
- the claim form and all statements of case;
- a case summary and/or chronology where appropriate;
- requests for further information and responses
- witness statements and summaries;
- notices of intention to rely on hearsay evidence;
- experts’ reports and responses;
- directions orders; and
- any other necessary documents containing evidence that a party intends to rely on
What is a case summary and when will one be needed?
In multi-track cases, each party should prepare a case summary for use at trial
The case summary will concisely:
(a) review the party’s submissions of fact in relation to each of the issues with reference to the evidence;
(b) set out any propositions of law to be relied upon; and
(c) identify any key documents that the trial judge should, if possible, read before the trial starts
What are some key points about trial etiquette?
Advocates stand when speaking in open court, but sit for hearings in chambers or before district judges
Witnesses should be addressed by their title and surname, but children are called by their first name only
How should judges be addressed in different courts?
- CC – Circuit Judge – ‘Your Honour’
- CC – District Judge – ‘Judge’
- HC – Judge – ‘My Lord/Lady’
- HC – District Judge - ‘Judge’
- CoA – Lord Justice – ‘My Lord/Lady’
- SC – Supreme Court Justice – ‘My Lord/Lady’
What trial venues are there for County Court and High Court cases?
CC – centres throughout E+W
HC – Royal Courts of Justice in London, but there are District Registries in many cities, which act as trial centres
In complex cases where the trial lasts many days, a specific timetable may be agreed in advance.
However, fast + intermediate track trials usually have a specific order of events. In overview, what is this order?
- Preliminary issues
- Opening speeches
- Examination-in-chief
- Cross-examination
- Re-examination
- Closing speeches
- Judgment
Preliminary issues might be addressed first. What might this entail?
Outstanding issues addressed before trial starts (usually procedural)
Who might make an opening speech?
If judge allows, C might set out background and facts in issue in opening speech
How does examination-in-chief work?
C and their witnesses will be called first
- W will take an oath/affirm and confirm their witness statement is true. Every word is treated as having been said in evidence
- If they wish to say more, the permission of the judge is needed, and only open questions are permitted
Expert evidence will either be given via written report or oral evidence
- Usually C’s expert goes first, but the court could order that each parties’ experts give evidence simultaneously, issue by issue
How do cross and re-examination work?
Cross-examination
- Witnesses cross-examined by opponent’s advocate, who puts forward the opponent’s case and seeks to discredit the witness
- When a witness is cross-examined, they should direct their answers to the judge, as the judge is the who deciding the issues
- Challenging a witness’ account is important, because if they don’t, the opponent will be treated as having accepted it
- Advocate can ask leading or closed questions
Re-examination
- Can only be re-examined in relation to matters that have been raised by the cross-examination and should be done cautiously
- Only open questions at this stage
Who might make a closing speech?
Defence advocate usually makes one, followed by C’s advocate
Summarises the law and facts in the most favourable light to convince the judge
When will a judgment be made? What issues will the judge address in their judgment?
May be delivered immediately or reserved to a later date for a complex case
- Will take effect on the day it is made
Judge will determine:
1) Liability - by reviewing evidence and providing reasons for their decision
- If D wins, this is the end of the substantive proceedings
- If C wins, more issues explored
2) Remedies and quantum
- Specified claim, total will be calculated
- Unspecified claim, judge will examine each category of damage in turn
3) Interest – whether it will be paid, the rate and the period
4) Costs – generally, unsuccessful party pays
- Fast and intermediate tracks – costs are fixed
- Multi-track – amount determined at a later hearing
If C succeeds, they might take enforcement action if they monies awarded are unpaid
If D wins, only costs will be awarded to them
Where the court orders the payment of an amount (including costs), this must be paid within 14 days, unless the order specifies otherwise
What is meant by an unfavourable witness? How does this differ from a hostile witness?
Unfavourable witness – W who forgets something or interprets something in a new way, for proper reasons
- This must be accepted by the party calling them
Hostile witness – refusing to answer or telling lies
- Party calling them may ask the judge to declare them a hostile witness, which allows the advocate to attack their credibility or cross-examine as if they were a witness for the other side
A decision might be appealed. There is no automatic right to appeal, so permission is required.
When will permission to appeal be granted? On what grounds?
For first appeals, permission is only given where the court considers that the appeal has a real prospect of success or some other compelling reason why the appeal should be heard
- Real prospect = realistic, as opposed to fanciful, prospect
- Some other compelling reason = important question of law or general policy
For second appeals, permission is required from Court of Appeal on the grounds above + the appeal must raise an important point of principle or practice
- Important point of principle must be a new principle, rather than correcting the application of an established practice
What is the procedure to request permission to appeal?
In most cases, request for permission will be made at the end of the trial and the judge will decide whether to grant permission
If request unsuccessful or none made, party can apply for permission from the appeal court itself
- Usually no hearing, but might request reconsideration at CC or HC if permission refused on paper
- In the COA, the judge must list the matter for an oral hearing no later than 14 days after the relevant direction if they decide that the application cannot be fairly determined without the presence of the parties
If an oral hearing is allowed and permission still refused, that’s the end of the matter as no further right of appeal exists
