6. Preparations for trial, trial procedure, trial costs and appeals. Flashcards
When must details of a witness’s availability be provided to the court?
- on the directions questionnaire, early in the proceedings, and
- in the pre-trial checklists as the case approaches the final hearing.
What is the aim of providing details of witness availability to the court?
to ensure that the trial, should it prove necessary, is not delayed for any reason.
What is a witness summons?
This is a document issued by the court requiring a witness to:
* attend court to give evidence; and/or
* produce documents to the court.
When should a witness summons be served and if not what is the result?
at least seven days before the date on which the
witness is required to attend court; otherwise, the court’s permission is required.
Is a witness summons binding?
Yes
What is the consequences of a binding witness summons that is not followed by the witness i.e they fail to appear at court?
the witness may be fined or even, in High Court proceedings, imprisoned for contempt.
Who is the witness summons served by?
The court
What must be a witness summons include when served to be effective?
to be effective, the witness must be offered or paid:
(a) a sum reasonably sufficient to cover their expenses in travelling to and from the court; and
(b) compensation for loss of time as specified in Part 34.
What is the advantage of serving a witness summons?
the judge is more likely to be sympathetic to
an adjournment of the trial should the witness fail to attend.
Is it usual to witness summons an expert?
it would be unusual to witness summons an expert as they are required to keep those instructing them informed of their availability.
What must be used to the parties and play a vital role to make sure all is in order for fast-track and multi-track claims?
Pre-trial checklists (aka - listing questionnaires)
What is the purpose of pre-trial checklists?
to ensure the parties have complied with all the directions and the trial is ready to proceed.
When must the pre-trial checklist be filed at court?
no later than eight weeks before the trial date
What is the role of the judge when reviewing pre-trial checklists?
the judge will review the checklists to decide whether further directions are needed and whether a review hearing is necessary before the trial.
What is a review hearing referred to as on the fast track and on the multi-track?
Fast track: listing hearing
Multi-track: pre-trial review
What are the consequences of both parties failing to comply with the pre-trial checklist?
the court will order that unless a completed
checklist is filed within seven days, the claim, defence and counterclaim will be struck out.
What are the consequences of one party failing to comply with the pre-trial checklist?
the court will fix a hearing to ensure the case is ready for the trial.
What may a judge require for heavy and complex cases - trial is expected to last more than 10 days?
a trial judge may order a pre-trial review to personally check the progress of the matter.
Once all pre-trial steps are complete what will the court do?
- give a time estimate and set a timetable for the trial if deemed necessary;
- fix the place of trial; and
- confirm the actual date of the trial or state the week within which it will begin.
- order that a trial bundle of documents be prepared.
What is a trial bundle?
a file of all the documents the judge may need to decide the case.
What does case law suggest should be the length of a trial bundle?
no longer than 250 pages in length.
Who prepares the trial bundle?
claimant or claimant’s solicitor
contents should be agreed wherever possible.
When must the trial bundle be filed?
must be filed between seven and three days before the start of the trial.
What are the key documents included in a trial bundle?
∘ the claim form and all statements of case;
∘ a case summary + chronology;
∘ requests for further information and responses;
∘ witness statements;
∘ 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 the responsibility of the party filing the trial bundle in terms of distribution?
responsible for supplying identical copies to all other parties involved in the proceedings and providing copies for use by the witnesses.
What is the requirement for parties in multi-track cases in terms of trial preparation?
each party should prepare a case summary for use at trial.
What is the purpose of a case summary?
assists both the court and the parties by indicating what points are still in issue and outlining the nature of the argument about the disputed matters.
What are the key components of a case summary in preparation for a trial?
The case summary will:
(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.
(c) Identify any key documents that the trial judge should, if possible, read before the trial starts.
How should witnesses be addressed in court?
Court Room Etiquette
Witnesses should be addressed by their title and surname, such as Mrs. Rees. However, children can be called by their first name.
What is the recommended practice for mobile phones in court?
Court Room Etiquette
Mobile phones should be switched off or set to silent during court proceedings.
Is the consumption of food allowed in court?
Court Room Etiquette
No, food should not be consumed in court.
When should advocates stand or sit in court/trial?
Court Room Etiquette
Advocates should:
* stand when speaking in open court
* remain seated for hearings in chambers or before district judges.
What is the mode of address for a circuit and district judge in the county court?
Circuit: Your Honour
District: Judge
What is the mode of address for a judge and a district judge in the High court?
Judge: My Lord/Lady
District: Judge
What is the mode of address for a Lord Justice in the Court of Appeal?
My Lord/Lady
What is the mode of address of a Supreme Court Justice in the Supreme Court?
My Lord/Lady
What are non-leading questions?
Non-leading questions are ‘open’ questions that facilitate a witness in ‘telling their story’.
What do non-leading questions usually start with?
‘who, what, where, when and how’
Are non-leading questions common in a civil trial as in a criminal trial?
Witnesses do not set out their evidence orally in court, they submit witness statements. Thus, in contrast to a criminal trial, non-leading questions will be
less common.
What are leading or ‘closed’ questions?
questions that suggest the answer and often invite a response of ‘yes’ or ‘no’.
When are leading questions used and what is the aim of the advocate?
They are used in cross-examination and the aim of the advocate is to keep control of the witness as far as possible.
What may be established in advance for more complex cases in terms of trial proceedings?
a specific timetable may be determined in advance, especially when the trial is listed for several days.
How long do fast track trials last?
usually one day
What is the order of events in a fast track trial?
- Preliminary issues
- Opening speeches
- Examination-in-chief
- Cross-examination
- Re-examination
- Closing speeches
- Judgment
What is are examples of preliminary issues to a trial?
requesting permission to amend a statement of case or to adduce additional evidence.
What is an opening speech in trial?
If permitted by the judge, the claimant may make an opening speech setting out (briefly) the background to the case and the facts that remain in issue.
Who is called first for examination-in-chief and why?
The claimant and their witnesses of fact will be called first.
Because their statement stands as their evidence-in-chief.
Can a witness say more in trial than what is in their witness statement?
Yes if permission of the judge is obtained.
What is the approach of advocates when additional evidence is allowed in a legal proceeding?
the advocate cannot lead on matters in dispute between the parties. Instead, they should only ask open questions
How is expert evidence typically presented in court?
Expert evidence will be presented as previously directed by the court, either in the form of written reports or through oral evidence.
Who will give expert evidence first?
The claimant’s expert usually goes first - court has the power to make alternative orders
What alternative orders can the court made regarding expert evidence?
that the parties’ experts give evidence
simultaneously on an issue by issue basis.
What type of questions does examination-in-chief allow?
open and non-leading questions only
What type of questions are allowed in cross-examination?
leading questions
What type of questions are allowed in re-examination?
open and non-leading questions
Who makes a closing speech first?
the defendant’s side
How is judgment delivered in trial?
either immediately or at a later date for complex cases.
What is the effect of the jugdment?
to bring the main proceedings to a conclusion
What does the judgment address?
- liability
- quantum
- interest
- costs
After judgment, if the claimant has won, what does the matter proceed to and how are costs and interest decided?
Matter will proceed to enforcement, with the defendant to pay interest and costs (if awarded)
After judgment, if the defendant has won, what does the matter proceed to and how are costs and interest decided?
Proceedings end, with claimant to pay costs (if awarded)
After judgment, when the court orders the payment of an amount of money (including costs), within how many days must this be paid?
Within 14 days unless the order specifies otherwise.
What reasons does an ‘unfavourable’ witness not perform as anticipated?
proper reasons - forgetfulness or misinterpreting the situation.
What does a party who calls an unfavourable witness have to do?
Accept them
What reasons does a ‘hostile’ witness not perform as anticipated?
unwilling to support the party who called them
What can a party calling a hostile witness do?
Ask the judge to declare them a hostile witness
What is the effect of asking the judge to declare a hostile witness?
Advocate may attack the witness’s credibility or cross-examine them as if they were a witness for the other side.
How many days does a party have to appeal against Country court or High court decisions?
21 days
How many days does a party have to apply for leave to appeal from the Court of Appeal to the Supreme Court?
28 days
Is there automatic right of appeal?
No - permission is required
For first appeals, when will permission to appeal be granted? (two situations)
- Only where the court considers that the appeal would have a real prospect of success
OR
- There is some other compelling reason why the appeal should be heard
What can do the appeal court do in response to a request to appeal (first appeals)?
- strike out the whole of part of an appeal notice
- set aside permission to appeal in whole or in part
*impose or vary conditions on which an appeal may be brought
What is a second appeal?
An application for permission to appeal a decision of the High Court or the County Court that was itself made on appeal
Which is the only court that can give permission for a second appeal?
The Court of Appeal
What are the two situations where the court of appeal will grant a second appeal?
- Where the appeal would raise an important point of principle or practice (which has not yet been established)
OR
- There is some other compelling reason to hear it.
What is the destination of an appeal when the decision made is of the District judge of the County Court?
Appeal made to Circuit judge of the County Court
What is the destination of an appeal when the decision made is of the Master or District judge of the High Court?
Appeal made to High Court judge
What is the destination of an appeal when the decision made is of the county court Circuit judge?
Appeal made to High Court judge
What is the destination of an appeal when the decision made is of the High Court judge?
Court of Appeal
What is the destination of an appeal when the decision made is of the Court of Appeal?
Supreme Court
What is a leapfrog appeal?
one that is heard by a higher appellate court than usual
e.g. appeals that would ordinarily be dealt with in the Court of Appeal, the destination of the appeal would be the Supreme Court.
What are the two stages of a leapfrog appeal process?
(a) the grant of a leapfrog certificate by the trial judge; and
(b) the grant of permission to appeal by the Supreme Court
When does a leapfrog appeal arise?
Where the case involves a point of law of general public importance concerning.
For example, the construction of a statute or statutory instrument; or a matter of
national importance.
What are the grounds of appeal?
An appeal will be allowed where the decisions of the lower court was either:
* Wrong (error in law, fact, or discretion); OR
* Unjust because of a serious procedural irregularity in the proceedings of the lower court.
What must a party do if they want to apply for permission to appeal?
File Notice of Appeal + any supporting documents within 21 days
What happens if an appeal permission is not granted on paper in the County Court or High Court?
Request decision to be reconsidered at an oral hearing
What happens if an appeal permission is not granted on paper in the Court of Appeal?
The judge may list an oral hearing but must be within 14 days if the application cannot be fairly determined without one.
What is the connection between witness statement and examination-in-chief?
the witness statement is taken to be the examination-in-chief. The witness just confirms their statement in examination-in-chief
When is a costs budget required?
in all multi track cases
What are the all the destinations of appeals?
