Trial — overviewPreparing for trial

Preparing for trial involves preparing the following (the nature of the document may vary from court to court):

• a chronology — various court guides provide assistance

• case summary — this is prepared by the claimant. A case summary should not exceed 250 words and must outline the matters in issue

• list of issues in the case

• reading list

• skeleton argument

Preparing in good time ensures that the court time is used as efficiently as possible and provides a better understanding of the case.

Law reports - Status of authorities

The citation of law reports in court is subject to a 'hierarchy'. It is the duty of counsel to cite the appropriate law report. When conducting research or preparing bundles, it is therefore important to ensure that the most appropriate law reports are referred to.

Preparing trial bundles

The claimant is usually responsible for preparing trial bundles. Parties should attempt to agree:

• the contents of the trial bundles

• that the documents in the trial bundles are authentic

• that the documents can be treated as evidence of the facts stated in them

CPR PD 39A sets out what should be included in the trial bundles.

Trial bundles should be filed at court not less than three days before the trial is due to start. Copies should be served on the opposing party, your barrister and one copy should be left in the witness box.

Different courts have their own rules about preparation of the trial bundles.

When preparing cases for inclusion in the trial bundles, attention should be paid to the court's preferred case reports and the status of the various authorities relied on.

Information technology and video conferencing

Using IT at trial can involve scanning documents and displaying them on a computer monitor (ie providing electronic, rather than traditional paper bundles) and the use of technology such as video conferencing. The use of IT is encouraged where it will assist the court in dealing with complex cases.

If you require a witness to give evidence by video-link the court's permission is required. The court has a discretion as to whether to grant such permission.

Transcripts - High Court

It should be possible to obtain a transcript of any hearing in open court by appointing a transcriber and completing the relevant form. It is also possible to arrange for 'live' or 'real time' recordings of court hearings though these must be arranged in advance of the hearings.

Public and private hearings

The general rule is that any trial will be held in public. There are exceptions where the trial will be heard in private unless the court orders otherwise.

The judge also has a broad discretion to order that a trial (or any part of it) should be held in private where:

• the court considers it necessary to do so in the interests of justice

• publicity would defeat the purpose of the hearing

• matters of national security are involved

• the hearing relates to confidential information (including personal financial matters) which would be damaged by publicity

• a private hearing is necessary to protect the interests of a protected party or child involved in the case

• the hearing concerns uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate

• the hearing is of a without notice application and it would be unjust to any respondent for there to be a public hearing

Forms of Address for the Judiciary

There are certain protocols that need to be followed when addressing members of the judiciary. These protocols apply both to communications by way of correspondence and when addressing the judiciary in court.

Order of play and trial timetables

The court will usually set a trial timetable. Generally, this will have been done during pre-trial case management, and in consultation with the parties.

In general, the order of play for the trial depends on which track the case has been assigned to and/or the venue.

The order of play in multi-track cases is as follows:

• claimant’s opening

• examination-in-chief of claimant’s witnesses, if permitted

• cross-examination of claimant’s witnesses

• re-examination of claimant’s witnesses

• examination-in-chief of defendant’s witnesses, if permitted

• cross-examination of defendant’s witnesses

• re-examination of defendant’s witnesses

• defendant’s submissions

• claimant’s submissions

• judgment

• costs and consequential orders

Examining witnesses

Examination-in-chief — a witness’s statement will stand as evidence-in-chief unless the court orders otherwise. As a matter of best practice (except in the Admiralty & Commercial Courts), you should obtain and serve a supplemental witness statement if you wish to adduce additional evidence at trial which is not in a witness’s existing statement.

Cross-examination — where a witness for the other side gives evidence, which is contrary to the case which you are putting forward, you are obliged to challenge them about it (ie to put your case to him) so that he has an opportunity to answer your assertions.

Re-examination — re-examination should only be permitted at all when the party re-examining needs to deal with or clarify matters which arose for the first time in cross-examination.

Deciding not to call a witness at all — a witness’s evidence will only be considered by the court if the witness attends to give oral evidence or if one of the parties asks the court to consider it as hearsay evidence.

Court etiquette

The most important rule is to be polite. If you are polite to everyone at all times, it is hard to go seriously wrong. Ensure that you establish how the judge should be addressed and stand when he or she enters the courtroom.

When making any kind of legal submission to the court, either 'suggest' or 'submit', do not 'think'.

Non-attendance by the parties

A party is deemed to be present (for the purposes of the CPR) if his legal representative attends court, even if he or she is not personally present.

The court cannot proceed with the trial without the claimant.

The court can proceed without the defendant. In such cases, the claimant will be required to prove its claim. The court has the jurisdiction to strike out the defence and any counterclaim, or both. When neither party attends trial, the court can strike out the whole of the proceedings.

Submissions of no case to answer

The defendant can make a submission of no case to answer when it is extremely confident that the claimant has not presented the court with sufficient evidence to make out a crucial part of its case.

When a defendant indicates that it intends to make such a submission, the court has a choice of whether or not to 'put the defendant to its election'. Putting a defendant to its election means, in effect, inviting the party to make a submission of no case to answer on the basis that it will not be allowed to call any evidence of its own if the submission fails.

The evidential test when the defendant is put to its election is 'has the claimant proved its case on the balance of probabilities?'

Briefing counsel

Ensure that if you decide to brief counsel, you do so in plenty of time before the trial. if you are confident about your case, the brief fee should be recoverable when you win. Refresher fees will be due for each subsequent day of the trial.

You should send all the materials which you think would be likely to make it into the trial bundle, as well as any relevant attendance notes and correspondence (which are relevant to either the case itself or settlement negotiations).

Bias of judges or tribunals

The English legal system prides itself on providing justice but from time to time there are concerns raised as to the extent to which a judge or members of a tribunal can be regarded as being fair and independent. The test to apply is simple ie whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. However, in practice it can be difficult to determine what will be perceived as bias. The courts have provided clear guidance on what will and will not constitute bias. For example, a judge can express a view as to the conduct of a party's solicitor without being regarded as bias but a judge cannot have a pecuniary interest in the outcome of the case, that certainly would be regarded as bias.