Unit 6 Preparations for trial, trial procedure, trial costs and appeals.

Question 1

Witness summons

Answer 1

If any doubt whether a witness will attend a summons should be sought.

Summons = document issued by the court requiring a witness to:
* attend court to give evidence; and/ or
* produce documents to the court.

Should be served at least 7 days before the date on which the witness is required to attend court; otherwise, the court’s permission is required (make application to court, interim application with or without notice).

It is binding and if they fail to appear, the witness may be fined or even, in High Court proceedings, imprisoned for contempt.

Witness must be offered or paid:
(a) a sum reasonably sufficient to cover their expenses in travelling to and from the court; and
(b) compensation for loss of time.

Question 2

Pre- trial checklists (listing questionnaires) and reviews

Answer 2

On the fast and multi- tracks, pre-trial checklists must be completed fully by the parties.

• Purpose: to ensure the parties have complied with all the directions and the trial is ready to proceed.
• Timing: Must be filed at court no later than 8 weeks before the trial date.
• Role: the judge will review to decide whether further directions are needed and whether a review hearing is necessary before the trial.
• Failure to comply: if neither party comply, the court will order that unless a completed checklist is filed within 7 days, the claim, defence and counterclaim will be struck out; if only one party does, the court will fix a hearing to ensure the case is ready for the trial.

In heavy cases, generally those where the trial is likely to last longer than 10 days, the trial judge may order a pre- trial review to personally check the progress of the matter.

After these steps have occurred, the court will:
(a) give a time estimate and set a timetable for the trial if deemed necessary;
(b) fix the place of trial; and
(c) confirm the actual date of the trial or state the week within which it will begin.

Thereafter, the court will order that a trial bundle of documents be prepared.

Question 3

Trial bundles

Answer 3

A file of all the documents the judge may need to decide the case.

Generally no longer than 250 pages in length.

• Who: C or C’s lawyer will prepare bundle but the contents should be agreed wherever possible.
• When: Must be filed between 7 and 3 days before the start of the trial.
• What: the trial bundle should include the key documents, for example:
  ∘ the claim form and all statements of case;
  ∘ a case summary and/ or chronology where appropriate;
  ∘ requests for further information and responses;
  ∘ witness statements;
  ∘ notices of intention to rely on hearsay evidence;
  ∘ experts’ reports and responses;
  ∘ directions orders; and
  ∘ any other necessary documents containing evidence that a party intends to rely on.

The party filing the trial bundle should supply identical copies to all other parties to the proceedings and for use by the witnesses.

Question 4

Case summary

Answer 4

In multi- track cases, each party should prepare a case summary for use at trial.

The case summary will (concisely):
(a) review the party’s submissions of fact in relation to each of the issues with reference to the evidence;
(b) set out any propositions of law to be relied upon; and
(c) identify any key documents that the trial judge should, if possible, read before the trial starts.

Question 5

The trial

Answer 5

• Trial timetable
  For more complex cases, a specific timetable may be determined in advance
• Preliminary issues
  Any outstanding issues will be addressed before the trial starts e.g. requesting permission to amend a statement of case or to adduce additional evidence.
• Opening speeches
• Examination- in- chief
• Cross- examination
• Re- examination
• Closing speeches
• Judgment

Question 6

Hostile and unfavourable witnesses

Answer 6

Unfavourable witness =
Does not perform for entirely proper reasons – perhaps they have genuinely forgotten a fact or now interpret the situation in a different way.

Hostile witness = fails to come up to proof because they are unwilling to support the party who called them. They may refuse to answer or tell lies so their evidence now differs from what is in their statement.

The party calling the person may ask the judge to declare them a hostile witness. So they may now attack the witness’s credibility or cross- examine them as if they were a witness for the other side.

Question 7

Appeals - permission to appeal - grounds

Answer 7

For first appeals, permission will be given only where the court considers that the appeal has a real prospect of success or there is some other compelling reason why it should be heard.

If the appeal is to the Court of Appeal or the Supreme Court, the case must also raise an important point of principle or practice.

Second appeals are much rarer and permission is required from the Court of Appeal itself before the judges will hear the case.

Question 7

Appeals - permission to appeal - procedure

Answer 7

No right to appeal.

• In most cases, the request will be made at the end of the trial and the judge will decide whether to grant permission.
• If the request is unsuccessful, or none is made, then the party can apply for permission from the appeal court itself. The appeal court will usually deal with such a request on paper, without a hearing. However, in the Court of Appeal, the judge must list the matter for an oral hearing no later than 14 days after the relevant direction if they decide that the application cannot be fairly determined without the presence of the parties.

Question 8

Appeals - timing

Answer 8

The aggrieved party has 21 days to appeal against a County Court or High Court decision; and 28 days to apply for leave to appeal from the Court of Appeal to the Supreme Court.

Question 9

Appeals - destination of appeals

Answer 9

• District judge of County Court -> Circuit judge of the County Court
• Master or district judge of High Court -> High Court judge
• Circuit judge -> High Court judge
• High Court judge -> Court of Appeal

Question 10

Appeals - leapfrog appeals

Answer 10

Appeal is one that is heard by a higher appellate court than usual.
Important point of principle or practice, or there is some other compelling reason why the Court of Appeal should hear it.

It is also possible (although very unusual) for cases to proceed straight from the High Court to the Supreme Court should the issue be deemed of sufficient importance.
2 stages:
(a) the grant of a leapfrog certificate by the trial judge; and
(b) the grant of permission to appeal by the Supreme Court.
Deal with point of law of general public importance

Question 11

Appeals - grounds

Answer 11

(a) wrong (as to law, interpretation of facts or exercise of discretion); or
(b) unjust because of a serious procedural irregularity in the proceedings of the lower court.

Question 12

Costs - general rule

Answer 12

Unsuccessful party pays the successful party’s costs.

‘Costs’ includes solicitor’s charges, disbursements such as court fees, expert’s fees and even pre- action costs.

Question 13

Costs management and budgeting

Answer 13

Before the case management conference is heard, the parties must file a costs budget setting out the costs incurred to date and those anticipated for the future.

The court may also impose a costs management order giving greater control over costs.

Question 14

Procedure for determining costs

Answer 14

• Small claims track: legal costs are not recoverable and so the costs payable will only relate to disbursements.
• Fast track: fixed recoverable costs - given a complexity band, can make app for more in exceptional circumstances
  Before 1 oct 2023 fixed combined with summary assessment
• Intermediate track: fixed recoverable costs, can make app for more in exceptional circumstances
• Multi- track: detailed assessment of costs carried out

Question 15

Procedure for determining costs - fixed costs

Answer 15

Where the CPR fix the amount of costs the party may recover from their opponent.

Question 16

Procedure for determining costs - summary assessment

Answer 16

If costs are not fixed, a different process applies.

Summary assessment involves the court determining the amount that is payable immediately, at the end of the hearing.

The general rule is the court should, unless there is a good reason not to do so, make a summary assessment of the costs:
(a) at the conclusion of a fast track trial; and
(b) at any other hearing that has not lasted more than one day.

Parties must file and serve a statement of costs no less than 2 days before a fast track trial and at least 24 hours before an interim hearing.

Question 17

Procedure for determining costs - detailed assessment

Answer 17

If the court cannot make a summary assessment of costs – usually because there is insufficient time – an order will be made for the detailed assessment of those costs.
Usually done in multi track.

Within 3 months of the date of the judgment or order, the receiving party must serve on the paying party a Notice of Commencement of detailed assessment proceedings together with their bill of costs and evidence in support, such as receipts.

If the paying party wishes to challenge the bill:
(a) The paying party has 21 days to serve points of dispute.
(b) The receiving party has 21 days to file a reply.
(c) The receiving party must then file a request for an assessment hearing within 3 months of the expiry of the period for commencing detailed assessment proceedings.
(d) If the costs claimed are less than £75,000, the court undertakes a provisional assessment where the judge decides what costs are allowable in the absence of the parties.
(e) If either party is unhappy with the provisional assessment, they may request an oral hearing within 21 days; but if the party fails to achieve an adjustment in their favour by at least 20% they will be ordered to pay the costs of the hearing. This is to discourage parties from trying their luck at reducing the costs without being confident of success.

Avoid this by agreeing costs.

Question 18

Inter- partes costs: interim

Answer 18

May be hearings along the way to determine interim matters. These could include applications for summary judgment, to set aside a default judgment or to strike out a party’s statement of case.

At the end of each of these interim hearings, the question of costs must be considered. The judge will determine who is to pay the costs of the particular application and will usually summarily (instantly) assess the amount.

Question 19

Inter- parties costs: final

Answer 19

Once settlement has been reached or the court has given its judgment at trial, have to determine who pays and how much.

Question 20

Inter- parties costs: final - factors in assessing the amount

Answer 20

(a) the conduct of the parties and the efforts made to try and resolve the dispute;
(b) the value of any money or property involved;
(c) the importance of the matter to the parties;
(d) the complexity of the matter;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case;
(g) the place and circumstances in which the work was done; and
(h) the receiving party’s last approved or agreed budget.

Question 21

Inter- parties costs: final - the standard basis

Answer 21

The standard basis will apply in most cases and costs awarded on this basis must be proportionate to the matters in issue.

Proportionate if they bear a reasonable relationship to the sums in issue, the value of any non- monetary relief in issue, the complexity of the litigation, any additional work generated by the conduct of the paying party and any wider factors.
Costs that are disproportionate may be disallowed or reduced even if reasonable.

If there is any doubt, it will be resolved in favour of the paying party.

Question 22

Inter- parties costs: final - the indemnity basis

Answer 22

Awarded as a penalty, usually to reflect the court’s displeasure with the manner in which a party has behaved either pre- action and/ or during proceedings.

Costs on this basis must be:
(a) reasonably incurred; and
(b) reasonable in amount.

Any benefit of the doubt is given to the receiving party.