11) Trials and Appeals

Question 1

Witness Summons

Answer 1

Witness summons should be sought if there is any doubt that a witness will not turn up. This is a document issued by the court requiring a witness to:
- attend court to give evidence; and/or
- produce documents to the court

Question 2

Witness Summons - Formalities

Answer 2

Should be served 7 days before the date on which the witness is required to attend court.
Binding and if the witness fails to appear they could be fined or imprisoned. The summons will normally be served by the court and to be effective the witness must be offered or paid:
- a sum reasonably sufficient to cover their expenses in travelling to and from court; and
- compensation for loss of time as specified in part 34

Question 3

Pre-trial checklists (listing questionnaires) and reviews

Answer 3

Purpose - to ensure that the parties have complied with all the directions and the trial is ready to proceed
Timing - completed pre-trial checklist must be filed at court no later than 8 weeks before the trial date
Role - the judge will review the checklists to decide whether further directions are needed and whether a review hearing is necessary before trial

Question 4

Next steps

Answer 4

The court will:
- give a time estimate and set a timetable for the trial
- fix the place of trial
- confirm the actual date of the trial or state the week within which it will begin
Then the court will order that a trial bundle be prepared

Question 5

Trial bundles - Who prepares them

Answer 5

The claimant (or legal representative) will usually prepare the bundle but the contents should be agreed wherever possible

Question 6

Trial Bundles - When

Answer 6

The bundle must be filed between 7 and 3 days before the start of the trial

Question 7

Trial Bundles - What

Answer 7

Should include all key documents such as:
- claim form and all statements of case
- a case summary and/or chronology
- requests for further information
- witness statements
- notices of intention to rely on hearsay evidence
- experts’ reports and responses
- directions orders
- any other necessary documents containing evidence that the parties wish to rely on

Question 8

Case Summary

Answer 8

In multi-track cases each party should prepare a case summary for use at trial. This indicates what points are still in issue and the nature of the argument about the disputed matters. It will:
- review the party’s submissions of fact in relation to each of the issues with reference to the evidence
- set out any propositions of law to be relied upon
- identify any key documents that the trial judge should read before the trial starts

Question 9

Modes of address - Country Court - Circuit Judge

Answer 9

Your Honour

Question 10

Modes of address - County Court - District Judge

Answer 10

Judge

Question 11

Non-leading questions/Open questions

Answer 11

Facilitate a witness in telling their story. Usually start with ‘who, what, where, when and how’

Question 12

Leading/closed questions

Answer 12

Suggest the answer and often invite a response of ‘yes’ or ‘no’

Question 13

Trial timetable - 1) Preliminary Issues

Answer 13

Any outstanding issues will be addressed before the trial starts. Usually dealt with before trial.

Question 14

Trial Timetable - 2) Opening speeches

Answer 14

If permitted by the judge the claimant may make an opening speech setting out the background to the case and the facts that remain in issue

Question 15

Trial Timetable - 3) Examination-in-chief

Answer 15

The claimant and their witnesses of fact will be called first. Because their statement stands as their evidence-in-chief, the witness will usually just be asked to take the oath or affirm, identify their witness statement in the trial bundle and confirm it is true. Every word in the statement is then treated as having been said by the witness in evidence. Expert evidence will be given as previously directed by the court – either written reports
or by way of oral evidence.

Question 16

Trial Timetable - 4) Cross-examination

Answer 16

The witness will be cross-examined by the opponent’s advocate. At this stage, there are fewer constraints on the advocate, who may ask leading or closed questions to keep control of the witness.

Question 17

Trial Timetable - 5) Re-examination

Answer 17

If necessary, the witness may be re-examined by their own advocate. However, this can only relate to matters that have been raised by the cross-examination and the lawyer should consider carefully whether doing so would actually improve the situation. Only open questions

Question 18

Trial timetable - 6) Closing speeches

Answer 18

After the evidence has been given, the defence advocate will usually make a closing speech followed by the claimant’s advocate. The aim is to summarise the law and the facts in the most favourable light to convince the judge of the validity of their case.

Question 19

Trial timetable - 7) Judgment

Answer 19

The judge will either deliver their judgment immediately or (if the case is complex) reserve
judgment to a later date. The judgment will take effect on the day it is made unless the order
specifies a different date.

Question 20

Judgement - Purpose/Effect

Answer 20

The effect of the judgment is to bring the main proceedings to a conclusion. The judge will begin by determining liability, specifically whether the claimant has established their cause of action, before going on to review the evidence and to provide reasons for their decision. If the defendant has won, this will be the end of the substantive proceedings. However, if the claimant has been successful, the court will need to consider what remedies to grant and this will usually be the payment of a sum of money (quantum).

Question 21

Costs

Answer 21

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, although the court may make a different order. Costs will be fixed for cases on the fast and intermediate tracks. In contrast, at the conclusion of a multi-track trial, the judge will only determine who should pay costs and the amount will be determined at a later hearing (known as a detailed assessment), unless agreement can be reached between the parties.

Question 22

Permission to Appeal - Grounds - First Appeal

Answer 22

Permission will be given only where the court considers that the appeal has a real prospect of success. Alternatively, that there is some other compelling reason why the appeal should be heard; for example, if there is an important question of law or general policy at stake that
requires consideration by the higher courts.

Question 23

Permission to Appeal - Grounds - Second Appeals

Answer 23

Permission is required from the Court of Appeal itself before the judges will hear the case. The grounds are the same as 1st appeal but the appeal must also raise an important point of principle or practice.

Question 24

Permission to appeal - Procedure

Answer 24

The request will be made at the end of the trial and the judge will decide whether to grant permission. If the request is unsuccessful or none is made then the party can apply for permission from the appeal court itself.

Question 25

Permission to appeal - Timing

Answer 25

21 days to appeal against a County Court or High Court decision.
28 days to apply for leave to appeal from the Court of Appeal to the Supreme Court

Question 26

Destination of appeals

Answer 26

The appeal will normally lie to the next court up. However, the route of appeal depends on:
* the court from whose decision the appeal is brought (‘the lower court’); and
* who made the decision (which level of judge)

Question 27

Destination of Appeal - Decision of District Judge of the County Court

Answer 27

Appeal made to Circuit judge of the County Court

Question 28

Destination of appeals - Decision of Master or District Judge of the High Court

Answer 28

Appeal made to High Court judge

Question 29

Destination of Appeals - Decision of Circuit judge

Answer 29

Appeal made to High Court judge

Question 30

Destination of Appeals - Decision of High Court Judge

Answer 30

Appeal made to Court of Appeal

Question 31

Destination of appeals - Decision of Court of Appeal

Answer 31

Appeal made to Supreme Court

Question 32

Leapfrog Appeal - Court of Appeal

Answer 32

A leapfrog appeal is one that is heard by a higher appellate court than usual. Appeals that would normally take place in the County or High Court will jump over these to the Court of Appeal; whereas for appeals that would ordinarily be dealt with in the Court of Appeal, the destination of the appeal would be the Supreme Court. Permission may be granted where the matter raises an important point of principle or practice, or there is some other compelling reason why the Court of Appeal should hear it.

Question 33

Leapfrog Appeal - Supreme Court

Answer 33

Can go straight from the High Court to the Supreme Court should the issue be deemed of sufficient importance related to the urgency of the matter. There are two stages in the process:
(a) the grant of a leapfrog certificate by the trial judge; and
(b) the grant of permission to appeal by the Supreme Court.
Such appeals arise where the case involves a point of law of general public importance

Question 34

On what basis may an appeal court grant an appeal?

Answer 34

The appellant will have to persuade the appeal court that the decision of the lower court was either:
(a) wrong (as to law, interpretation of facts or exercise of discretion); or
(b) unjust because of a serious procedural irregularity in the proceedings of the lower court.