UNIT 6: TRIAL PREPARATIONS

Question 1

How to ensure no issues with witness attendance?

Answer 1

o be asked, at an early stage, if there are any dates when they cannot attend; and
o be notified of the trial date without delay

Question 2

What is a witness summons?

Answer 2

• If there is any doubt as to whether a witness will attend voluntarily, a witness summons should be sought.
• Definition - a document issued by the court requiring a witness to:
  o attend court to give evidence; and/or
  o produce documents to the court

Question 3

When should a witness summons be served? By who?

Answer 3

should be issued and served at least 7 days before the date on which the witness is required to attend court (otherwise court permission is required to issue the summons)
normally will be served by the court

Question 4

Effect and failure to comply with witness summons?

Answer 4

witness summons is binding, and if the witness fails to appear, they may be fined or (in High Court proceedings) imprisoned for contempt

Question 5

How can a witness summons be effective?

Answer 5

to be effective, the witness must be offered or paid:
o a sum reasonably sufficient to cover their expenses in travelling to and from the court; and
o compensation for loss of time as specified in Part 34

• NB the payment of expenses is not a condition of getting permission for a witness summons - but at least offering the payment of expenses is.

Question 6

Advantage of witness summons?

Answer 6

judge is more likely to be sympathetic to an adjournment of trial if the witness fails to attend if they have been summonsed

Question 7

What is the purpose of a pre-trial checklist?

Answer 7

to ensure parties have complied with all the directions and the trial is ready to proceed

Question 8

When must a pre-trial checklist be filed?

Answer 8

must be filed at court no later than 8 weeks before trial date

Question 9

Pre-trial checklist - role of judge, multi/intermedi vs fast track?

Answer 9

judge will review checklists to decide whether further directions are needed and whether a review hearing is necessary before the trial.
 Fast track - known as listing hearing
 Intermediate + multi-track - known as pre-trial review

Question 10

Failure to comply with pre-trial checklist?

Answer 10

o if neither party comply, 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 complies, the court will fix a hearing to ensure that the case is ready for trial

Question 11

When may the judge order a pre-trial review to personally check the progress of the matter?

Answer 11

in cases 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

Question 12

What will the court do after the pre-trial checklist is completed?

Answer 12

o give a time estimate and set a timetable for the trial if deemed necessary;
o fix the place of trial; and
o confirm the actual date of the trial or state the week in which it will begin
* After this, the court will order that a trial bundle of documents be prepared

Question 13

What is the trial bundle and who files it?

Answer 13

• Definition - a file of all the documents the judge may need to decide the case
  o indexed and paginated for ease of reference + quick access to the documents
• Length - generally, caselaw suggests should be no longer than 250 pages in length
• Who - claimant or the lawyer who has the conduct of the claim on their behalf will usually prepare the bundle but contents should be agreed wherever possible

Question 14

When must the bundle be filed?

Answer 14

bundle must be filed between 7 and 3 days before the start of the trial

Question 15

What should be included in the bundle?

Answer 15

should include key documents,

o claim form and all statements of case;
o case summary and/or chronology where appropriate;
o requests for further information and responses;
o witness statements;
o notices of intention to rely on hearsay evidence;
o experts’ reports and responses;
o directions orders; and
o any other necessary documents containing evidence that a party intends to rely on

Question 16

What is a case summary?

Answer 16

multitrack: each party should prepare a case summary for use at trial
o Purpose - designed to assist the court and the parties by indicating what points are still in issue and the nature of the argument about the disputed matters

Question 17

What are the key contents of a case summary?

Answer 17

o review the party’s submissions of fact in relation to each of the issues with reference to the evidence;
o set out any propositions of law to be relied upon; and
o identify any key documents that the trial judge should read before the trial starts

Question 18

When can advocates remain seated?

Answer 18

o advocates should stand when speaking in open court, but can remain seated for hearings in chambers or before district judges.

Question 19

County Court circuit judge - mode of address?

Answer 19

Your Honour

Question 20

County Court district judge - mode of address?

Answer 20

Judge

Question 21

High Court judge - mode of address?

Answer 21

My Lord’Lady

Question 22

High Court District Judge - mode of address?

Answer 22

Judge

Question 23

Court of Appeal Lord Justice - mode of address?

Answer 23

My Lord/Lady

Question 24

Supreme Court Supreme Court Justice - mode of address?

Answer 24

My Lord/Lady

Question 25

Leading vs Non-Leading questions?

Answer 25

• Non-leading questions - facilitate a witness in ‘telling their story’
  o usually start with who, what, when, where and how
  o Will be less common in civil trials, because witnesses do not set their evidence out orally but will rely upon witness statements
• Leading questions - suggest the answer, and often invite a response of ‘yes’ or ‘no’
  o used in cross-examination
  o aim is to keep control of the witness as far as possible

Question 26

Venue?

Answer 26

• Fast and multi-track cases - will be in County Court; has hearing centres throughout E&W
• High Court - based at Royal Courts of Justice in London, but there are District Registries in many cities which act as trial centres

Question 27

Preliminary issues

Answer 27

 outstanding issues will be addressed before trial starts
 could include substantive law
 will normally involve points of procedure, e.g. requesting permission to amend a SoC or adduce additional evidence

Question 28

Opening speech?

Answer 28

 IF permitted by judge, C can make an opening speech setting out the background to the case, and the disputed facts.

Question 29

Examination-in-chief?

Answer 29

 C and their witnesses of fact will normally be called first
 witness usually just asked to take oath or affirm, identify their witness statement in the trial bundle, and confirm it is true
 after ^, every word in the statement is treated as having been said by the witness in evidence

Question 30

What if a witness wants to amplify their statement?

Answer 30

 if witness needs to amplify their statement or give evidence in relation to new matters, they can say more with the judge’s permission

 Where additional evidence is allowed, the advocate can only ask non-leading/open questions

Question 31

How is expert evidence presented?

Answer 31

 Expert evidence will be given as previously directed by the court - written reports or oral evidence
 C’s expert traditionally goes first
 Court has power to make alternative orders - e.g., parties’ experts give evidence simultaneously on an issue by issue basis

Question 32

4. Cross-examination?

Answer 32

 Witness will be cross-examined by opponent’s advocate
 Purpose - to put their own client’s case and advocate will seek to discredit the witness by highlighting inconsistencies or gaps in their evidence so they appear less believable
 Can ask leading questions to keep control of the witness

Question 33

Re-examination?

Answer 33

 witness can be re-examined by their own advocate if necessary
 can only relate to matters that have been raised by the cross-examination
 only open questions may be put to the witness

Question 34

Closing speeches?

Answer 34

 after evidence, D’s advocate will usually make a closing speech followed by C’s advocate
 Aim - to summarise the law and facts in the most favourable light to convince the judge of the validity of their case

Question 35

How will the judgment take effect?

Answer 35

 Judge will either:
 deliver judgment immediately; or
 reserve judgment to later date
 Taking effect - judgment will take effect on the day it is made, unless the order specifies a different date

 Effect - brings the main proceedings to a conclusion

Question 36

What steps will the judge take for their judgement?

Answer 36

1. determine liability - i.e., whether C has established their cause of action
2. review the evidence; and
3. provide reasons for their decision

Question 37

What happens if D wins?

Answer 37

will be end of the substantive proceedings

Question 38

What happens if C wins?

Answer 38

court will need to consider what remedies to grant
 specified claim - total will be calculated
 unspecified claim - judge will consider each category of damage that C is claiming in turn, and whether interest will be paid (at what rate and for what period)

Question 39

Costs - fast track and intermediate trials?

Answer 39

 General rule - unsuccessful party will be ordered to pay the costs of the successful party, though court may make a different order
 Fast track + intermediate trial - judge will summarily assess the amount payable

Question 40

Costs - multi track?

Answer 40

judge will only determine who should pay costs, and amount will be determined at a later hearing unless agreement can be reached between the parties

Question 41

When must money be paid after the court orders a payment?

Answer 41

Where the court orders the payment of an amount of money (including costs), this must be paid within 14 days unless the order specifies otherwise

Question 42

What is an unfavourable witness?

Answer 42

• Unfavourable witness - doesn’t perform properly, but for entirely proper reasons.
  o e.g., genuinely forgotten a fact or now interpret the situation in a different way
  o always a risk given the inherent unpredictability of trials

Question 43

What is a hostile witness?

Answer 43

• Hostile witnesses - fails to come up to proof because they are intentionally unwilling to support the party who called them
  o may refuse to answer or tell lies so their evidence differs from the statement
   consequence of lying - contempt of court
   not that bad considering they will have shot their own credibility down

Question 44

Effect of hostile witness?

Answer 44

o party calling the person may ask judge to declare them a hostile witness
 Effect - advocate may attack witness’s credibility or cross-examine them as if they were a witness for the other side

Question 45

When will the court normally grant permission for a FIRST APPEAL?

Answer 45

• First appeals - court will only grant permission where they consider that the appeal has a real prospect of success or there is some other compelling reason why it should be heard
  o Compelling reason - e.g., if there is an important question of law or general policy at stake that requires consideration by the higher courts

Question 46

First appeal to Court of Appeal or Supreme Court - key element?

Answer 46

case must raise an important point of principle or practice

Question 47

Second appeal rules?

Answer 47

much rarer + permission is required from CoA itself before judges will hear the case. Same grounds as above but must raise a matter of public importance.

Question 48

Procedure for appeals?

Answer 48

• There is no right to appeal
• Procedure for obtaining permission: (CPR Part 52)
  o Most cases - request will be made at end of trial and judge decides whether to grant permission
  o If request unsuccessful or no request made - party can apply for permission from appeal court

Question 49

How do appeal courts deal with requests for appeal?

Answer 49

 Appeal courts usually deal with requests on paper without a hearing
 HOWEVER, in CoA - 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 parties’ presence

Question 50

Timing for an appeal?

Answer 50

Aggrieved party has
o 21 days to appeal against CC or HC decision
o 28 days to apply for leave to appeal from CoA to SC

Question 51

Destination of appeals?

Answer 51

• Normally - appeal will lie to the next court up
• Route of appeal depends on:
  o the court from whose decision the lower court is brought (’the lower court’); and
  o who made the decision

Question 52

High Court appeal?

Answer 52

o Case may be heard by - High Court judge, master, or district judge
 If decision is by High Court judge - matter must be appealed to CoA
 If master or district judge - appeal goes up to a High Court judge

Question 53

County Court appeal?

Answer 53

o Case may be decided by - circuit judges or district judges
 If decision by circuit judge - appeal is to High Court judge
 If decision by district judge - appeal is to circuit judge

Question 54

Court of Appeal - appeals?

Answer 54

o Further appeal would lie to Supreme Court
o Generally - very few cases will reach the UKSC, because judges of the quality of LJ of Appeal are scarce and valuable, and it is important they are used effectively and only on work that is appropriate to them

Question 55

What is a leapfrog appeal?

Answer 55

• Meaning - an appeal that is heard by a higher appellate court than usual
  o Appeals that would normally take place in the County or High Court will jump over these to the Court of Appeal;
  o Appeals that would ordinarily be dealt with in the Court of Appeal, would be appealed to the Supreme Court.

Question 56

• When would permission be granted for an appeal to be transferred straight to the CoA?

Answer 56

o where the matter raises an important point of principle or practice; or
o there is some other compelling reason why the CoA should hear it

Question 57

• When would a case proceed straight from HC to UKSC?

Answer 57

o in exceptional circumstances, usually related to the urgency of the matter, and where:
 the issue is deemed of sufficient importance; and
 the case involves a point of law of general public importance
o Two stages:
 1 - grant of a leapfrog certificate by the trial judge; and
 2 - grant of permission to appeal by the Supreme Court

Question 58

Grounds of appeal being granted?

Answer 58

• Appellant will have to persuade the appeal court that the decision of the lower court was either:
  o wrong (as to law, interpretation of facts, or exercise of discretion); or
  o unjust because of a serious procedural irregularity in the proceedings of the lower court

Question 59

General rule for costs?

Answer 59

• Costs - includes solicitor’s charges, disbursements such as court fees, expert’s fees, and even pre-action costs
• General rule - unsuccessful party pays the successful party’s costs
  o NB judge has discretion to make a different costs order if deemed appropriate

Question 60

Effect of Costs Management Order on multi-track?

Answer 60

• A party awarded its costs on the standard basis at trial will normally recover
  the amount of its last approved or agreed budgeted costs.
• On the standard basis, the court may depart from the budgeted costs only if
  persuaded there is a good reason to do so, for example where the costs of a
  phase were:
  ∘ not incurred at all; or
  ∘ much less than budgeted.
• Costs awarded on the indemnity basis and incurred costs will be assessed by
  the court in the usual way, unless agreed.

Question 61

Costs payable for each track?

Answer 61

o Small-claims track - legal costs are not recoverable. Costs payable will only relate to disbursements
o Fast/Intermediate track – fixed costs apply
o Multi-track - detailed assessment of the costs will be carried out

Question 62

Fixed costs - advantages + disadvantages?

Answer 62

• CPR sometimes fix amount of costs party may recover from opponent. Separate from arrangement between party + own lawyers as this is governed by contract.
• Advantage - the litigant knows in advance how much will have to be paid to the other party if they lose the case
• Disadvantage - unattractive to successful party as they are extremely unlikely to recover all their costs and will often have to pay the shortfall to their solicitor

Question 63

Fixed recoverable costs - what tracks do these apply to?

Answer 63

• Fixed recoverable costs apply to all cases on the fast and intermediate tracks, with the aim of reducing the level of costs, providing certainty in the amount and simplifying the process.

Question 64

Complexity bands?

Answer 64

• When claim allocated to fast/intermediate – court must also assign to complexity band, determining amount of legal costs recoverable
   ascending scale of fixed recoverable costs increase w/ complexity
   higher band of claim + later that settlement is reached or the closer to trial, higher costs payable BY LOSER TO WINNER
  [disbursement may be allowed if reasonably incurred]

Question 65

Can parties increase/decrease fixed recoverable costs?

Answer 65

• Parties can make apps for costs greater than fixed recoverable costs in exceptional circumstances.
• Can be increased by paying party or decreased by receiving party by 50% for unreasonable conduct

Question 66

Effect of fixed recoverable costs?

Answer 66

party need only select assigned complexity band + read down to stage to identify liability (net VAT, disbursements, court fees)

Question 67

Summary assessment procedure?

Answer 67

• Applies if costs are not fixed
• Process - involves the court determining amount payable immediately at the end of the hearing
• General rule - court should, unless there is a good reason not to do so, make a summary assessment of the costs:
  o 1 - at the conclusion of a fast track trial; and
  o 2 - at any other hearing that has not lasted more than one day
• Parties’ responsibilities - must file and serve a statement of costs (detailed breakdown of costs):
  o at least 24 hours before an interim hearing

Question 68

Procedure for serving a detailed assessment?

Answer 68

o Receiving party must serve the paying party with a Notice of Commencement of detailed assessment proceedings + bill of costs and evidence in support - within 3 months of the judgment or order

Question 69

When will a detailed assessment apply

Answer 69

• If court cannot make summary assessment (usually due to insufficient time), order will be made for detailed assessment of the costs
  o Usually applies to multi-track cases

Question 70

Procedure for paying party to challenge detailed assessment

Answer 70

 paying party has 21 days to serve points of dispute
 receiving party has 21 days to file a reply
 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

Question 71

What happens if costs claimed are less than 75k?

Answer 71

 if costs claimed are less than £75,000, court will undertake a provisional assessment where judge decides what costs are allowable in the absence of the parties

Question 72

If either party is unhappy with outcome of provisional hearing?

Answer 72

 if either party is unhappy with the provisional assessment, they may request an oral hearing within 21 days
 If party fails to achieve an adjustment in their favour by at least 20%, they will be ordered to pay the costs of the hearing

Question 73

Inter-partes costs?

Answer 73

• At the end of each of the hearings ie summary judgement/setting aside default judgement/striking out SoC , q of costs must be considered
• Unless fixed costs apply (under fast/intermediate) judge will determine who is to pay costs + usually SUMMARILY (instantly) assess the amount

Question 74

What is the standard basis?

Answer 74

• Costs must be proportionate to matters in issue
  o Proportionate - if the costs 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
• If there is any doubt - will be resolved in favour of paying party
• Disproportionate costs - may be disallowed or reduced even if they were reasonably incurred and reasonable in amount

Question 75

Stage 1 of standard basis

Answer 75

• Judge will go through bill on a line by line basis, scrutinising each point in turn
• Test - the costs must be reasonable and proportionate
• Any items deemed to be unreasonably incurred or unreasonable in amount will be disallowed

o fees of expert who prepared a report to advise on their claim before proceedings were issued, are totally disallowed on the basis that this expense was unreasonably incurred: report is unreasonable in the costs’ context because the court did not give permission for Halliday to rely upon this expert.
o Expert with permission’s report reduced due to particularly the value of the money in dispute, the complexity of the issue and the degree of specialised knowledge involved, the judge decided the fee was too high.

Question 76

Stage 2 of standard basis

Answer 76

• Proportionality of the overall figure must be assessed by reference to the factors listed in Part 44
  o If deemed proportionate, no further assessment required
  o If not, judge will scrutinise various categories of cost, such as disclosure or factual evidence, to decide whether they should be further reduced.
• Once any such reductions have been made, the resulting figure is the final amount of the costs assessment

Question 77

Indemnity basis

Answer 77

• Costs are 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 must be:
  o reasonably incurred; and
  o reasonable in amount
• Benefit of doubt is given to the receiving party

Question 78

Indemnity basis reasonability

Answer 78

Item not reasonably incurred = not recoverable
Item reasonably incurred BUT not in amount = reduced recoverability

Question 79

Standard v indemnity - difference in proportionality?

Answer 79

1. standard - court will only allow costs that are proportionate to the matters in issue
2. indemnity - no test of proportionality

Question 80

Standard v indemnity - doubts?

Answer 80

1. standard - doubts resolved in favour of paying party
2. indemnity - doubts resolved in favour of receiving party