Unit 12 - Trial and Post-Trial Issues

Question 1

What do you do if a witness is attending a hearing?

Answer 1

1. Notify them of the trial date without any delay
2. Ask for their availability on whether they will be able to attend the trial.
3. If unable to attend the trial, notify the court through a directions questionnaire and pre-trial checklist.
4. Should serve a witness summon

Question 2

What should you do if you wish a witness to attend a court hearing?

Answer 2

Serve a witness summon

Question 3

What is a witness summon?

Answer 3

It’s a document that is served by the court to compel a witness to either attend the hearing and provide evidence or provide their documents to the court.

Question 4

Is the witness summon binding?

Answer 4

Yes but the witness summons would need to be served 7 days before the trial date that they are required to attend.

Question 5

What happens if the witness does not comply with the witness summon?

Answer 5

They will be contempt of court

Question 6

What are the benefits for the witness for following the witness summon?

Answer 6

Witnesses would be offered or paid a sufficient amount of the travel expenses to and from the court and compensation for the time they have used in court PD34A.

Question 7

Who normally serves the witness summon to the witness?

Answer 7

Solicitor serves the witness summon but this is usually served by the court. Party themselves can request the court if they wish to serve it on their own.

Question 8

What must you do when briefing a counsel (barrister) ?

Answer 8

Need to make sure that they are instructed well in advance of the trial and were provided with all of the relevant documents that they may need for the trial.

Question 9

What’s the PD for a trial bundle?

Answer 9

PD 32

Question 10

What’s the PD for the Contents of the trial bundle?

Answer 10

Para 27.5, PD32

Question 11

What should be the content in the trail bundle?

Answer 11

Para 27.5, PD32

a. Claim form and the statements of case
b. Case summary and or the chronology of the events.
c. Requests for information and response to the claims
d. All WS relied on as evidence
e. All or any witness summaries
f. Notice of intention to rely on hearsay evidence under R33.2
g. Notice of intention to rely on hearsay evidence under Rule 33.6 that is not: provided in a witness statement, given orally or is not hearsay evidence under Rule 33.2
h. Medical reports
i. Expert reports
j. Order giving directions to the conduct of the trial
k. other documents

Question 12

Would the documents in the trial bundle need to be original?

Answer 12

Yes under PD32, para 27.6 - original needs to be there with the copies of the court orders.

Question 13

Who is responsible for creating the trial bundle?

Answer 13

Legal rep of the claimant - Para 32, para 27.7

Question 14

What should you do if there’s an illegible document in a trial bundle?

Answer 14

Para 27.11, PD32

Typed copy should be included and should be referred to appropriately.

Question 15

Should the contents of the trial bundle be agreed on?

Answer 15

Yes where it is possible under PD 27, para 27.12.

If it’s not possible, then the agreed points should be summarised and outlined.

Question 16

Should the trial bundles be identical to both parties?

Answer 16

Yes under PD32, Para 27.13

Question 17

When should the trail bundle be filed?

Answer 17

Not more than 7 days and not less than 3 days before the trial

Question 18

How many stages are there for trial?

Answer 18

4

Question 19

What’s the first stage of the trial?

Answer 19

Preliminary Stage
Parties try and deal with things straight:
Permission to amend a statement of case
Permission to adduce an examination in chief - R32.5(3)
Application to the court to strike out the claim
Change the timetable for an earlier hearing.

Question 20

what’s the second stage of trial?

Answer 20

Opening speech - normally made by the Claimant

setting out the background to the case and the issues that are in dispute concisely.

Question 21

What’s the 3rd stage of the trial?

Answer 21

Evidence and examination of the Claim

Question 22

What is an examination in chief all about?

Answer 22

Witness of the party will present their witness

Purpose - witness will confirm their name, details, address and the contents of the statement.

Questions will be asked to confirm the statement but open questions will only be allowed.

Question 23

What is cross reference all about and what is the purpose?

Answer 23

To gain evidence that will be in favour of the opposing party and discredit the witness.

NO LEADING QUESTIONS

Question 24

Re-examination stage, what is this all about?

Answer 24

Party will be able to question their own witness and gain credibility for their statements.
Can’t ask leading questions.
The only questions they can ask are related to the issues that were pointed out in the cross examination.
Resolve ambiguity.

Question 25

Who starts the closing speech?

Answer 25

D then the Claimant

Question 26

What happens in the judgement?

Answer 26

Court will give the judgement immediately or in another time.

Question 27

What will be covered in the judgement?

Answer 27

1. Liability
2. Quantum - how much will the successful party get.
3. Interest -
   Normally stated in the contract & poc
   If not it will be outlined in the Senior Courts Act
4. General rule is that the unsuccessful party will pay for the cost of the successful party.

Question 28

What’s the CPR for general costs?

Answer 28

44

Question 29

What’s the general rule on costs?

Answer 29

Part 44.2(2)(a): loser pays the winner’s costs.

Question 30

What’s the basis of the assessment for costs?

Answer 30

CPR 44.3: Courts will assess the costs in a standard basis or an indemnity basis.

Question 31

When does the standard basis not apply?

Answer 31

When the court says otherwise - CPR 44.3(4)

Question 32

What will the court allow in a standard basis ?

Answer 32

CPR 44.3(4): costs that are reasonably incurred, reasonable in amount and proportionate to the matter in the issue.

Question 33

What is an indemnity basis cost?

Answer 33

It’s awarded as a penalty to show that the court is not happy with the party’s behaviour at pre-action or during the proceedings.

Question 34

What’s the difference between an indemnity cost and a standard basis cost?

Answer 34

It does not have to be proportionate

Question 35

What’s the CPR for an indemnity basis?

Answer 35

CPR 44.3(3): Costs would just need to be reasonably awarded and reasonable in amount.

Question 36

How would a cost be proportional?

Answer 36

If there’s a reasonable relation to the sums n issue, value of the non-monetary relief, complexity of the litigation, additional work and any wider factors like reputation.

Question 37

What is the bill of costs about?

Answer 37

Payment for the solicitor’s services.

Question 38

What’s the rule for Bill of costs?

Answer 38

PD47, para 5.12

Question 39

What work can they charge on?

Answer 39

PD47, para 5.22(1):
Communications such as letters with the usual rate of every 6 minutes, the hourly rate of their travel, documents done, negotiations, incidental to proceedings and compiling bill.

Question 40

What grounds can you rely on to challenge the bill of costs?

Answer 40

difference of 20% between the bill and cost of budget - PD44.3(2)

Hourly rate is excessive

Status of the fee earner is too senior