TRIAL

Question 1

3

SETTLEMENT BEFORE TRIAL

Answer 1

1. **If a case is settled before trial other than by one party accepting the other’s Part 36 offer, the parties must record the terms of the agreement, including settlement costs, in writing, in an appropriately worded ‘consent order’.
2. Without this order, there is no automatic right to payment (that is, there is no enforceable obligation on the paying party to pay).
3. Often the form of order used is a ‘Tomlin Order’

Question 2

Tomlin Orders
A Tomlin Order is in two part

Answer 2

*The order, which confrms that the parties have agreed settlement and that they have agreed that the case is stayed pending the terms of the settlement being carried out; and
*A schedule confirming the amount to be paid, by whom, and what date this needs to be paid by.If a case is not capable of settlement, then it will proceed to trial.

Question 3

Pre-Trial Checklists

Answer 3

1. Pre-trial checklists (courtform N170, also known as listing questionnaires) are used by parties to litigation to inform the court of their preparation for the trial.
2. So they seek to conform what should have already been done, and:
   *Provide a last opportunity for the parties to re-estimate the time for the trial;
   *Ascertain whether the parties will be legally represented;
   *Confirm the estimated length of the trial; and
   *Give the parties an opportunity to prepare draft directions for consideration of the court (if further directions are required).
   They should be filed with the court no later than** eight weeks** before the trial date or the start of the trial period.

Question 4

3

The Pre-Trial Review

Answer 4

1. On receipt of the parties’ pre-trial checklists in a multi-track case, the court may decide to hold a pre-trial review.
2. The pre-trial review is a case management conference listed for hearing in the last stages before the trial is due to be heard.
3. It will usually take place** four weeks before the trial **window starts. The purpose is to ensure that the parties are ready or will be ready for trial.

Question 5

5

The process undertaken by the court at the pre-trial review involves:

Answer 5

*Checking compliance with previous court orders and case management directions
*Approving the trial timetable:
*Setting case management directions which are required for the trial
*Preparation of trial bundles,

*Fixing a time and date for the trial,

Question 6

4

WITNESS SUMMONS

Answer 6

1.A party may ask the court to issue a summons to** compel a witness** to attend court to give evidence at the trial.
2.They must send to the court a separate summons for each witness to be served plus one copy of each (one for service and one for the court file) together with the court fee.
3.Importantly, the party must also send an appropriate sum to cover the witness’s expenses in attending and compensating them for their loss of time—the ‘conduct money’,
4.To be effective, a party must serve a witness summons on a witness at least **seven days **before the trial

Question 7

Effect of Serving a Witness Summons

Answer 7

The effect of serving the summons is that if the witness then fails to attend, they will be in** contempt of court**.

Question 8

ADVOCACY

Answer 8

1. solicitors are giv-en rights of audience in County Court and can appear in the High Court and Court of Appeal if they have undertaken an additional assessment to obtain Higher Rights of Audience.
2. By ‘appear’ we mean the solicitor can present evidence, present legal arguments to the court, and examine witnesses. This process is known as advocacy, and the person doing it as the ‘advocate’.

Question 9

Modes of Address

Answer 9

Question 10

4

TRIAL BUNDLE

Answer 10

1.there may be more than one bundle, for example, a substantive bundle, an authorities bundle, and a procedural bundle.
2.The claimant’s solicitor should prepare and bear the cost of a bundle for the Court and one for each party.
3. The bundles must be filed between **three and seven **days before the trial is to take place.
4. The trial bundle includes information about the parties, the case summary, a schedule of issues, witness statements, expert reports, and the like.

Question 11

TRIAL FORMAT

Answer 11

The usual trial format is as follows:
1.Opening submissions for the. claimant (by the claimant’s advocate);
2. Opening submissions for the defendant (by the defen- dant’s advocate);
3. Consideration of any preliminary issues;
4.The claimant’s witnesses will give their evidence;
5.The claimant’s experts will give their evidence;
6. The defendant’s witnesses will give their evidence;
7. The defendant’s experts will give their evidence;
8. The claimant’s counsel will make closing submissions on behalf of the claimant; and finally
9. The defendant’s barrister will make their closing submis- sions.

Question 12

Cross-Examination and Re-Examination

Answer 12

1. After each witness has given their evidence on behalf of the party who has called them, the advocate for the other party may cross-examine.
2. As we’ve already discussed in an earlier chapter, normally, the signed witness statement stands as the evidence in chief.
3. For example, the written statement of a witness for the claimant will stand as their evidence.
4. The defendant’s advocate may then cross-examine, followed by any re-examination that the claimant’s advocate thinks necessary.
5. Re-examination is the process where the party’s advocate asks their own witness questions on matters arising out of cross-examination to try to restore the witness’s credibility on that point.

Question 13

Leading vs. Non-Leading Questions

Answer 13

1.A leading question is a question that prompts or encourages the desired answer (for example, ‘You went to Sainsbury’s
that morning, didn’t you’? or ‘You took the bus to the football stadium, didn’t you?’).
2. A non-leading question is one that does not prompt or encourage the desired answer (such as, ‘What did you do on Monday morning’? ‘How did you travel to the football stadium’ Generally speaking, any question beginning withhow/where/what/when will be non-lead-ing.
3. The diference is signifcant because both leading and non-leading questions are permitted during cross-examination, but only non-leading questions are permitted during
re-examination.

Question 14

2

JUDGMENT

Answer 14

1. At the conclusion of the trial, it is common for the judge to proceed immediately to giving their judgment or** retire briefy** to consider the evidence before returning for this purpose.
2. If the judge feels that they need more time to formulate their conclusions, they may ‘reserve’ judgment and list the matter for a further hearing on a date agreed for them to** ‘hand down’ **their judgment.

Question 15

5

ANCILLARY MATTERS

Answer 15

After the judge has handed down their judgment, the parties may make submissions in relation to any other matters that flow from the judgment, for example:
1.interest
2.Costs—the normal rule is that the losing party will pay the successful party’s costs.
3. Time to pay
4. Stay of execution
if it is the intention of the losing party to appeal the decision, they may request a stay of execution of the judgment order
5. Permission to appeal

Question 16

DISCONTINUANCE

Answer 16

1. If a party decides that they want to discontinue a claim before trial, they must file and serve** a notice of discontinuance. **
2. In certain situations, a party must obtain permission to discontinue, including when the court has granted an** interim injunction or when the claimant has received an interim pay-men**t (unless the paying party consents).
3. The consequence
   of discontinuing a litigated claim is that the claimant who has discontinued is liable to** pay the costs** of the defendant in defending the action, subject to the application of qualifed
   one-way costs shifting.