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What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
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
Preparing in good time ensures that the court time is used as efficiently as possible and provides a better understanding of the case.
For more detail see Preparing for trial.
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.
For more detail see Preparing trial bundles.
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.
For more detail see Law reports - Status of authorities.
Notice to admit facts
As part of the final preparation of your case before trial you should also consider whether it is appropriate to serve a notice to admit facts on the other side (or serve a further one if such a notice has already been served). Such a notice asks the other side to admit facts in the case, with a view to saving time and costs. Prior to trial a notice may be useful in focusing on the precise facts which need to be proved by either side. You may find that in the final preparations for trial you are served with a notice to admit by the other side. For more detail see Notice to admit facts.
IT 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.
For more detail see IT and video conferencing.
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.
For more detail see Transcripts - High Court.
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
For more detail see Public and private hearings.
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.
For more detail see Forms of address for the judiciary.
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'.
For more detail see Court etiquette.
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.
For more detail see Bias of judges or tribunals.
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).
For more detail see Briefing counsel.
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:
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
costs and consequential orders
For more detail see Order of play and trial timetables.
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.
For more detail see Non-attendance by the parties.
Where it is difficult to get a witness to attend court, to give evidence or to produce documents, a witness summons can be used. These types of summonses require a witness to attend court to give evidence or to produce documents to the court. Witness summonses are not generally used where a party simply requires a witness to produce documents. The procedure and documents required to obtain a witness summons are set out in the Civil Procedure Rules.
If the court grants a summons, then it will serve it on the witness. A party can give written notice to the court that it wishes to effect service itself. Service must be at least seven days prior to the court appearance.
For more detail see Witness summons.
Witness evidence - preparing for and giving evidence at trial
Most witnesses are nervous of giving evidence. Parties can prepare witnesses to give evidence but cannot coach them. There are various codes of conduct and case law which set out guidelines as to what is and what is not appropriate during this preparation. 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. The witnesses's examination will usually take the form of a very brief examination-in-chief, as a witness’s statement will stand unless the court orders otherwise, followed by cross-examination by the other side's advocate and if necessary re-examination. When giving evidence the court will consider the credibility of a witness. There are a variety of factors which may influence the court's view and it is important to ensure that your witness' evidence is regarded as truthful and accurate.
For more detail see Witness evidence - preparing for and giving evidence at trial.
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?'
For more detail see Submission of no case to answer.
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