Disputes - Trial (14) Flashcards
Where will trials be held?
Trial: Trials comprise the substantial hearing for claims that have not been otherwise settled or discontinued.
(1) County Court: County Court trials occur at hearing centres across England and Wales.
(2) High Court: High Court trials occur at the Royal Courts of Justice and other District Registries in major cities.
What is trial etiquette?
Trial Etiquette: It is important that representatives act appropriately during trial.
Courtroom Etiquette
Courtroom Etiquette: Representatives must act properly.
(1) Standing Address: Advocates must stand when addressing the open court.
(2) Electronic Devices: Electronic devices must be silenced or turned off.
(3) Food: Food must not be consumed in court.
Modes of Address
Modes of Address: Individuals at court must be appropriately addressed.
(1) Witnesses: Title and surname (Mrs Smith), or first name of a child (Billy).
(2) District Judge: ‘Judge’.
(3) Circuit Judge: ‘Your Honour’.
(4) HC/COA/SC Judge: ‘My Lord/Lady’.
Examining Witnesses
Examining Witnesses: Advocates must question witnesses and parties correctly during examination.
(1) Non-Leading: Non-leading questions are asked in examination and re-examination (however, usually only witness statements are used). These are open questions prompting no specific answer, i.e. ‘who’, ‘what’, ‘where’.
(2) Leading: Leading questions are used in cross-examination. They invite closed ‘yes’ or ‘no’ answers.
Problematic Witnesses
Problematic Witnesses: Witnesses may perform poorly for a party. The effect differs.
(1) Unfavourable: Unfavourable witnesses perform poorly for valid reasons, such as forgetfulness. This is a risk litigants must accept.
(2) Hostile: Hostile witnesses perform poorly on purpose. Advocates can ask the Judge to declare the witness hostile, permitting them to treat them as opposition and cross-examine them to mitigate any harm done.
What is trial procedure?
Trial Procedure: Trials tend to follow the same structure in both courts.
Preliminary Issues
Preliminary Issues: Last minute outstanding issues are addressed, such as final admissions of evidence. This is usually done earlier in preparation, though.
Opening Speech
Opening Speech: The Claimant side will make an opening speech establishing the issues in dispute and summarising the case.
Claimant Case
Claimant Case: The Claimant will present evidence, primarily its witnesses and experts. Alternatively, evidence may be presented issue-by-issue rather than party-by-party.
(1) Examination-in-Chief: Witnesses will confirm their witness statement on oath. Rarely, further non-leading questions may be asked with the permission of the Judge.
(2) Cross Examination: Opponent will question the witness using either type of question. They put the opponent’s case to them, ensuring they do not accept it. They then highlight inconsistencies and gaps to weaken the evidence.
>Choosing not to cross-examine means the evidence-in-chief is impliedly accepted as true.
(3) Re-Examination: Rarely, a witness can be re-examined by their party, where necessary to address new issues raised in cross examination, or clarify confusion. This requires non-leading questions.
Defence Case
Defence Case: The Defendant will present their evidence in the same manner as the Claimant.
Closing Speeches
Closing Speeches: Both parties will give closing speeches, summarising the law and facts in favour of their case. The Defendant leads, and the Claimant closes.
Judgment
Judgment: The Judge will then enter judgment immediately or, for complex cases, reserve judgment for a later date (below).
What is judgment procedure?
Judgment Procedure: During judgment, the Judge will review the evidence and then determine liability and quantum, providing their reasons for doing so.
(1) Date of Effect: Judgments are immediately effective, unless otherwise ordered.
(2) Successful Claim: If the Claimant succeeds, the Judge will determine remedy. This is predetermined in specified claims, but must be calculated with interest in unspecified claims.
(3) Successful Defence: If the Defendant succeeds, the substantive proceedings end.
Costs
Costs: The Judge will also have to determine costs. Generally, the losing party pays, unless otherwise stated.
(1) Fast Track: Unless agreed, costs will be determined on the ‘summary basis’ (see costs).
(2) Multi Track: Unless agreed, costs will be determined at a later hearing known as a ‘detail assessment’.
Date of Payment
Date of Payment: Damages and costs must be paid within 14 days of judgement, unless otherwise ordered.
