Trial Flashcards
re: witnesses
what information should Ws be asked for/given?
- Ws should be asked for dates to avoid and informed of the trial date asap
re: witnesses
when is W availability given to the court?
- W availability is given on the DQ and in PTC
re: witnesses
when might a witness summons be used?
- W can be summonsed to attend court/produce document(s) if they refuse; it is thought they won’t attend or they need evidence for their employer
re: witnesses
what is the procedure for summonsing a witness?
- 2 copies of the summons must be sent to the court who will then serve 1 copy by 1st class post, unless the party specifically requests to serve it themselves
re: witnesses
is court permission required to summons a witness?
Court permission is not required to issue a summon unless they are seeking:
o To issue a summons less than 7 days before the hearing
o To issue a summons for any day which is not a trial date
re: witnesses
what is required for a summons to be effective?
For the summons to be effective, the party must offer the witness:
o A sum reasonably sufficient to cover their travel expenses; and
o Compensation for loss of time
re: witnesses
what happens if a witness has been summonsed and they fail to appear?
- If W fails to appear they can be fined or, if in the HC, imprisoned for contempt
re: witnesses
can an expert be summonsed?
yes, but this is rare
re: witnesses
when might a summonsed witness make an application and on what basis?
- W can make an application for a summons to be set aside if they cannot give any relevant evidence
re: witnesses
what is an unfavourable witness?
- they do not perform as hoped but for proper reasons i.e. they have genuinely forgotten a fact
re: witnesses
what is a hostile witness?
they fail to come up to proof because they are unwilling to support the party who called them i.e. telling lies or refusing to answer
re: witnesses
what can a party do in relation to a hostile witness?
o Party can ask the judge to declare them a hostile W.
o Counsel must prove W has no desire to see justice done nor to give evidence fairly.
re: witnesses
what happens if the judge declares the witness hostile?
o If granted, counsel can then attack their credibility / cross examine them as if they are a W for the o/s (they cannot be examined about any pre-cons)
re: witnesses
what is the key to determine if a witness is hostile?
o They key is how inconsistent their w/s is against their oral evidence.
re: trial preparation
when is a pre-trial check list used?
- Used in all tracks except small. Completed by parties.
re: trial preparation
what is a pre-trial check list also called?
a listing questionnaire
re: trial preparation
what is the purpose of the pre-trial checklist?
- Purpose is to check directions have been complied with and case is trial ready. May include info like if an expert is not available on one day
re: trial preparation
when must the pre-trial check list be filed?
- Must be filed no later than 8 weeks before the trial
re: trial preparation
what will the judge do on receipt of the pre-trial checklist?
Judge will review PTC and decide if a hearing is needed (called a listing hearing on fast-track and PTR in intermediate and multi-track)
they will also (either on paper or at a hearing):
o Give a timetable and set a timetable for trial if necessary
o Fix the place of the trial; and
o Confirm the trial date / state the week in which it will begin
re: trial preparation
what happens if both parties fail to complete the pre-trial checklist?
- If both parties fail to comply, the court will grant an unless order saying that unless the checklist is filed in 7 days the case will be struck out
re: trial preparation
if the hearing is at least 10 days, what might the court do?
order a pre-trial review regardless of the PTC to check the progress of case
if so, the representative attending the hearing must be familiar with the case and have authority to deal with any issues that arise
re: trial preparation
what are the bundle formalities?
- This should be indexed, paginated and no longer than 250 pages
re: trial preparation
who prepares the bundle?
C but it should be agreed with the o/s
C should provide incidental copies to the o/s and witnesses
re: trial preparation
when is the bundle to be filed?
- It must be filed between 3 – 7 days before the trial
re: trial preparation
what documents must the bundle include?
key documents, such as:
o Statements of case
o Case summary / chronology where appropriate
o Requests for further information and responses
o Witness statements
o Notice of intention to rely on hearsay evidence
o Experts’ reports and responses
o Directions orders
o Any other necessary documents containing evidence that a party intends to rely on
- NB: a Part 36 offer would not be included in the bundle because these are made on a WPSATC basis
re: trial preparation
what is a case summary called in the high court?
skeleton argument
re: trial preparation
what is the position regarding case summaries in multi-track cases?
- In multi-track cases, each party should prepare a case summary.
re: trial preparation
what information should the case summary include?
it should be concise and include:
o Submissions relation to each of the issues with reference to the evidence
o Propositions of law to be relied upon
o Identify key documents the judge should read before the hearing
re: trial
generally, where are multi-track cases heard?
- Generally, MT cases are heard by a CJ in the CC or by a HCJ in the HC
re: trial
excluding multi-track cases, where are all other cases generally heard?
DJ in the CC
DJs can hear contested cases up to £25k. Permission from the designated CJ is needed to a DJ to hear cases above this limit.
re: trial
explain the key court room etiquettes
o Counsel stand when speaking in open court. They can be seated when the hearing is in chambers or before a DJ
o C’s legal team on the right and D’s legal team on the left
o Ws addressed by title and surname (child Ws are addressed by first name)
o Phones off and no food to be consumed in court
re: trial
what are the modes of address
o District Judge > Judge
o Circuit Judge > Your honour
o High Court Judge, Lord Justice, Supreme Court Justice > My Lord/Lady
re: trial
when might a specific trial timetable be produced?
- For complex cases lasting several days, a specific timetable may be produced
re: trial
give a general overview of the order of play
- preliminary issues
- opening speech
- examination in chief
- cross-examination
- re-examination
- expert evidence
- closing speech
- judgment
- remedies and interest
- costs
Normally C’s evidence, cross-examination and re-examination (+any expert evidence) is done and then this is repeated for D
re: trial
explain ‘preliminary issues’
- Dealt with before the trial starts. May concern points of law but more commonly procedure i.e. permission to amend SOC (likely to fail as prior notice to the o/s is essential) or permission to adduce additional evidence
re: trial
explain ‘opening speech’
- C briefly sets out the background and facts in issue, if permitted by the judge
re: trial
explain ‘examination in chief’
- W asked to take an oath / affirm, identify w/s and confirm it is true. Every word is treated as have been said by W.
- Normally no further questions. Permission is required to ask any questions (i.e. to clarify a point or give new evidence).
- If permission is given for additional evidence, counsel can only ask open (/non-leading) questions (i.e. what did you see? What happened next)
re: trial
what are examples of open/non-leading questions
what did you see? What happened next)
re: trial
explain cross-examination
- Witness cross-examined by o/s or their counsel.
- Counsel should challenge W’s version of events, otherwise it is treated as accepting the evidence and try to discredit W
- Counsel can ask closed/leading questions
re: trial
what are closed questions? Why are they useful?
give examples
i.e. which require yes/no answers
This is a good way to control the witness i.e. ‘you didn’t have a clear view of D’s car, did you?’
re: trial
explain re-examination
- W may be re-examined by own counsel but only on points that have been raised in cross-examination, if this is necessary
- Only open / non-leading questions can be asked
re: trial
explain ‘expert witnesses’
- If there is oral evidence, the court may hear C’s expert evidence now or may order the experts give evidence simultaneously on an issue-by-issue basis
re: trial
explain ‘closing speeches’
- D and then C will make a closing speech to summarise the law, facts and attempt to persuade the judge of their argument
re: trial
explain judgment
- Judgement delivered immediately or reserved to a later date if complex
- Judgment takes effect on the day it is made, unless stated otherwise
re: trial
explain remedies and interest
- only relevant is C has won
- Specified > total amount owed can be easily calculated
- Unspecified > judge considers each category of damage to assess quantum
- The judge will make a determination as to interest i.e. the rate and period
re: trial
what is the general rule on costs?
loser pays winner’s costs but the court can depart from this
re: trial
when should money awarded be paid?
- All monies to be paid within 14 days unless order says otherwise
