Revision Guide - Ch. 14: Trial

Question 1

What must be done if parties settle before trial?

Answer 1

They must record their agreement in a consent order which the court will issue.

This makes the agreement enforceable

Question 2

What is a Tomlin order?

Answer 2

A type of consent order which confirms the parties have agreed a stay because they have reached a settlement, along with a schedule confirming amounts to be paid, by whom, and for how much.

Because it includes a stay of proceedings, if a party defaults on the terms, proceedings can pick up where the left off (there is no need to file new proceedings)

Question 3

When may the court hold a pre-trial review?

Answer 3

On receipt of the parties’ pre-trial checklists in a multi-track case.

Question 4

When will the pre-trial review generally take place?

Answer 4

4 weeks before the trial window starts.

Question 5

What is a pre-trial review?

Answer 5

It is a trial management conference which is meant to ensure that the parties are ready or will be ready for trial.

If a party is not ready for trial, the court may require the party to take the necessary steps to ensure that the party is ready for trial.

Question 6

What does the process undertaken in pre-trial review involve by the court ?

Answer 6

1. Checking compliance with previous court orders,
2. Approving the trial timetable,
3. Setting case management directions which are required for the trial,
4. Preparation of trial bundles, and
5. Fixing a time and date for the trial, if not already been fixed

Question 7

Who prepares and bears the cost of a bundle?

Answer 7

The claimant’s solicitor should prepare + bear the cost of a bundle for the court and one for each party

Question 8

When are bundles filed?

Answer 8

Must be filed between 3 and 7 days before trial

Question 9

What does the bundle include?

Answer 9

i. information about the parties,
ii. the case summary,
iii. a schedule of issues,
iv. witness statements,
v. expert reports, and the like

Question 10

How does the trial proceed?

Answer 10

In the order as set out in the trial timetable.

The judge can depart from the timetable in the interests of justice

Question 11

What is the usual trial format?

Answer 11

1. Opening submissions for the claimant,
2. Opening submissions for the defendant,
3. Consideration of any preliminary issues,
4. Claimant’s witnesses will give their evidence,
5. Claimant’s experts will give their evidence,
6. Defendant’s witnesses will give their evidence,
7. Defendant’s experts will give their evidence,
8. Claimant’s counsel will make closing submissions on behalf of the claimant, and
9. Defendant’s counsel will make their closing submissions

Question 12

What may happen after a witness gives their evidence in chief?

Answer 12

They may be cross-examined by the opposing party in order to cast doubt on their evidence

Question 13

When are leading questions permitted?

Answer 13

During cross-examination

Question 14

What may happen after cross-examination?

Answer 14

The party who originally called the witness may re-examine the witness to try to restore credibility to the witness’s evidence.

Leading questions are not permitted

Question 15

What will happen at the conclusion of trial?

Answer 15

The judge may give judgment immediately or reserve judgment for a later date

Question 16

What will happen after judgment is handed down?

Answer 16

The parties may make submissions in relation to interests, costs, time to pay, stays of execution, or for permission to appeal.

Question 17

What is done if a party decides that they want to discontinue a claim before trial?

Answer 17

They must file and serve a notice of discontinuance.

Question 18

What happens if the claimant discontinues the claim?

Answer 18

They are liable to pay the costs of the defendant in defending the action, subject to the application of qualified one-way costs shifting applicable to personal injury claims