UNIT 6: TRIAL PREPARATIONS Flashcards
How to ensure no issues with witness attendance?
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
What is a witness summons?
- 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
When should a witness summons be served? By who?
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
Effect and failure to comply with witness summons?
witness summons is binding, and if the witness fails to appear, they may be fined or (in High Court proceedings) imprisoned for contempt
How can a witness summons be effective?
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.
Advantage of witness summons?
judge is more likely to be sympathetic to an adjournment of trial if the witness fails to attend if they have been summonsed
What is the purpose of a pre-trial checklist?
to ensure parties have complied with all the directions and the trial is ready to proceed
When must a pre-trial checklist be filed?
must be filed at court no later than 8 weeks before trial date
Pre-trial checklist - role of judge, multi/intermedi vs fast track?
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
Failure to comply with pre-trial checklist?
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
When may the judge order a pre-trial review to personally check the progress of the matter?
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
What will the court do after the pre-trial checklist is completed?
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
What is the trial bundle and who files it?
- 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
When must the bundle be filed?
bundle must be filed between 7 and 3 days before the start of the trial
What should be included in the bundle?
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
What is a case summary?
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
What are the key contents of a case summary?
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
When can advocates remain seated?
o advocates should stand when speaking in open court, but can remain seated for hearings in chambers or before district judges.
County Court circuit judge - mode of address?
Your Honour
County Court district judge - mode of address?
Judge
High Court judge - mode of address?
My Lord’Lady
High Court District Judge - mode of address?
Judge
Court of Appeal Lord Justice - mode of address?
My Lord/Lady
Supreme Court Supreme Court Justice - mode of address?
My Lord/Lady
Leading vs Non-Leading questions?
- 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
Venue?
- 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
Preliminary issues
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
Opening speech?
IF permitted by judge, C can make an opening speech setting out the background to the case, and the disputed facts.
Examination-in-chief?
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
What if a witness wants to amplify their statement?
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
How is expert evidence presented?
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
- Cross-examination?
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
Re-examination?
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
Closing speeches?
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
How will the judgment take effect?
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
What steps will the judge take for their judgement?
- determine liability - i.e., whether C has established their cause of action
- review the evidence; and
- provide reasons for their decision
What happens if D wins?
will be end of the substantive proceedings
What happens if C wins?
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)
Costs - fast track and intermediate trials?
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
Costs - multi track?
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
When must money be paid after the court orders a payment?
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
What is an unfavourable witness?
- 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
What is a hostile witness?
- 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
Effect of hostile witness?
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
When will the court normally grant permission for a FIRST APPEAL?
- 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
First appeal to Court of Appeal or Supreme Court - key element?
case must raise an important point of principle or practice
Second appeal rules?
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.
Procedure for appeals?
- 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
How do appeal courts deal with requests for appeal?
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
Timing for an appeal?
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
Destination of appeals?
- 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
High Court appeal?
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
County Court appeal?
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
Court of Appeal - appeals?
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
What is a leapfrog appeal?
- 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.
- When would permission be granted for an appeal to be transferred straight to the CoA?
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
- When would a case proceed straight from HC to UKSC?
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
Grounds of appeal being granted?
- 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
General rule for costs?
- 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
Effect of Costs Management Order on multi-track?
- 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.
Costs payable for each track?
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
Fixed costs - advantages + disadvantages?
- 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
Fixed recoverable costs - what tracks do these apply to?
- 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.
Complexity bands?
- 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]
Can parties increase/decrease fixed recoverable costs?
- 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
Effect of fixed recoverable costs?
party need only select assigned complexity band + read down to stage to identify liability (net VAT, disbursements, court fees)
Summary assessment procedure?
- 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
Procedure for serving a detailed assessment?
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
When will a detailed assessment apply
- 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
Procedure for paying party to challenge detailed assessment
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
What happens if costs claimed are less than 75k?
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
If either party is unhappy with outcome of provisional hearing?
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
Inter-partes costs?
- 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
What is the standard basis?
- 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
Stage 1 of standard basis
- 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.
Stage 2 of standard basis
- 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
Indemnity basis
- 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
Indemnity basis reasonability
Item not reasonably incurred = not recoverable
Item reasonably incurred BUT not in amount = reduced recoverability
Standard v indemnity - difference in proportionality?
- standard - court will only allow costs that are proportionate to the matters in issue
- indemnity - no test of proportionality
Standard v indemnity - doubts?
- standard - doubts resolved in favour of paying party
- indemnity - doubts resolved in favour of receiving party
