Trial

Question 1

What is the purpose of a pre-trial checklist (AKA listing questionnaire)?

Form N170

Answer 1

• Check case management directions have been complied with (so case ready for trial)
• Give any further directions
• Fix a date for trial (or confirm date already fixed)

Question 2

How is the deadline for the pre-trial checklist given?

Answer 2

Standard direction given by court in fast and multi-track cases

Question 3

What does pre-trial checklist require of the parties?

Answer 3

• Confirm/disclose (non-)compliance with directions
• Specify further directions needed
• Confirm whether court has already consented to expert evidence (request if not)
• Details of experts and if they have agreed
• Details of witnesses (availability/special facilities)
• Who will present the case at trial
• Estimate of trial length (preferably agreed)

Question 4

When will the pre-trial checklist be sent to each party and when will it be due?

Answer 4

• Sent to parties at least 14 days before due date of filing
• Due date will be at least 8 weeks prior to trial date/start of trial period

Question 5

What should the parties do with their copies of the pre-trial checklists before filing?

Answer 5

Exchange copies to avoid court being given conflicting information

Question 6

What happens after pre-trial checklist is filed?

Answer 6

Court gives listing directions - further directions needed to get matter listed for trial

Question 7

Are listing directions given at a hearing?

Answer 7

Might be given at a pre-trial review - where court checks that parties have complied with all previous directions

Question 8

What must court give in listing directions?

Answer 8

• Fixed date of trial
• Time estimate for trial
• Place of trial

Question 9

What might court give in listing directions?

Answer 9

• Evidence (i.e. experts)
• Trial timetable
• Preparation of trial bundles
• Other matters

Question 10

What is the purpose of the trial bundle and what kind of documents should be included?

Answer 10

Ensure all relevant material before court and judge can identify pre-trial reading - should include all documents likely to be referred to

• Claim form/statements of case
• Case summary
• Requests for further information
• All witness statements relied on
• Any hearsay notices
• Any notices of intention to rely on evidence not contained in witness statement or expert’s report, being given orally at trial, or hearsay evidence
• Any medical reports
• Any expert’s reports

Question 11

Who prepares the trial bundle and when must it be filed?

Answer 11

C prepares and must file trial bundle with court no more than 7 days and no less than 3 days before trial begins

E.g. trial on Wed 15
Earliest = Tues 7
Latest = Thurs 9

Question 12

E

Who does C supply identical bundles to?

Answer 12

Each party in proceeding, the judge, and witnesses

Question 13

What happens with information that parties disagree on in bundle?

Answer 13

Summary of points in dispute to be included

Question 14

What is a reading list? Who signs it?

Answer 14

• An estimate of reading time for judge to get to know the case and estimate of hearing length - should be lodged with trial bundles
• Signed by all advocates

Question 15

In what cases must a reading list be submitted?

Answer 15

High Court cases in the Chancery and King’s Bench Division

Question 16

What does the skeleton argument do and for what trials must it be prepared?

Answer 16

Summarises submissions to be made and cites authorities to be relied on - prepared for High Court trials

Question 17

When must a list of authorities be submitted and when by?

Answer 17

In High Court cases - submitted to court by 5pm the day before the hearing

Question 18

If the parties settle at pre-trial, who must they let know and when? What happens otherwise?

Answer 18

Listing officer for trial court must be notified immediately (or face cost penalties)

To enable court to allocate time to other cases

Question 19

What does a notice to admit facts do?

Answer 19

Formally asks the other party to admit particular factual point in issue in the case

If other party accepts - won’t have to call evidence to prove at trial

Will have already served evidence/had dialogue supporting point

Question 20

What happens for the recipient of a notice to admit fact if they do not admit?

Answer 20

Judge decides at trial whether fact correct, if so then party receiving notice is vulnerable (should have agreed fact earlier and avoided time-wasting)

Cost consequences

Question 21

When will a notice to admit documents be used?

Answer 21

Where a party serves notice that they wish (the authenticity of) a document to be proved at trial

Question 22

What is the brief to counsel?

Answer 22

Full set of trial documents sent to counsel appearing on client’s behalf

Less likely in complex multi-track cases - counsel will have usually been involved throughout case

Question 23

What is the difference between the brief fee and the refresher?

Answer 23

• Brief fee = covers preparation for and first day of trial
• Refresher = subsequent days of trial where agreed fee per day is paid

Usual to have staged payments in larger cases and written agreements as to what precisely is included in the brief (e.g. weekend working or closing submissions).

Question 24

Is the brief fee refundable if a case settles after the brief is delivered?

Answer 24

Not unless parties have agreed

Question 25

How are reluctant (expert) witnesses compelled to attend trial?

Answer 25

By serving a witness summons (N20) to give oral evidence/produced specified documents

Question 26

What court etiquette should be followed during trial/hearing?

Answer 26

* Legal rep should (sometimes) stand when speaking and sit when not * Legal reps address court indirectly (e.g. has **your honour** [not have you] received my skeleton argument?) * Opponent referred to as 'my learned friend' (barrister) or 'my friend' (solicitor) * Everybody must stand when judge enters/leaves courtroom * An advocate should not indicate what they 'think' - should only use submissions 'it is sumbbited/I submit' * Legal rep should not approach the bench without permission

Question 27

What does a legal representative do if they speak first? | By way of introduction

Answer 27

* Introduce opponent by name and state party they represent * Introduce themselves by identifying the party they represent (without stating their own name)

Question 28

What is the order of events in a civil trial?

Answer 28

1. Claimant's opening speech 2. Claimant's case (EIC, XE, RE) 3. Defendant's case (EIC, XE, RE) 4. Defendant's closing speech 5. Claimant's closing speech

Question 29

Will a claimant always give an opening speech?

Answer 29

May not be needed in smaller cases

Question 30

What does the claimant say in their opening speech?

Answer 30

Nature of claim and identifies issues to be tried by reference to statements of case, statements of issue and key documents | Judge will generally have read key documents in a trial bundle

Question 31

What is the difference between leading and non-leading questions?

Answer 31

**Leading** = Qs suggest particular answer ("so you breached the contract by failing to deliver...?" **Non-leading** = not that ("when were the goods delivered?"

Question 32

When can leading and non-leading questions be used?

Answer 32

Cross-examination can be conducted using leading questions, re-examination cannot

Question 33

What stands as evidence-in-chief of a witness?

Answer 33

Their witness statement

Question 34

What will the parties refer to in their closing speeches?

Answer 34

Their evidence, inferences to be drawn, and how it supports their case

Question 35

What does a judgement/final order do?

Answer 35

* Ends the claim * Make provision for costs

Question 36

Will judgements/final orders only ever be made after the trial/final hearing?

Answer 36

No - can also be default and summary judgements

Question 37

Will a judgement always be handed down immediately following trial?

Answer 37

No - may be **reserved** in complex cases | Delivered at later date

Question 38

Where a judgement is reserved, what can the judge usually get the parties to do?

Answer 38

* Get parties' views on how judgement should be handed down * Will circulate judgement in draft to parties in advance of formally handing down (parties prepare cost submissions and fix obvious errors)

Question 39

When must a judge circulate the judgement in draft to parties?

Answer 39

By 4pm on the second working day before handing down

Question 40

Will a judgement be a public document before it is handed down?

Answer 40

No

Question 41

What will parties do before judge makes a costs order?

Answer 41

Submit costs submissions

Question 42

What is a split trial?

Answer 42

Where court decides to: 1. Hold a trial to decide who is to blame 2. Hold a further trial to assess the level of damages (a **disposal hearing**)

Question 43

When will a split trial be allowed?

Answer 43

Where evidence on liability is **different** to evidence on quantum and it furthers the OO to hold 2 separate hearings

Question 44

What does 'drawing up' an order mean?

Answer 44

Setting order out in formal document (to be sealed by court)

Question 45

When will an order not be drawn up by the court?

Answer 45

* A party is ordered/agrees to draw it up * The court dispenses with need to draw it up * It is a consent order (drawn up by parties)

Question 46

If a party is required to drawn up an order, when should they file it? | And what happens if they fail?

Answer 46

No later than 7 days after becoming responsible for doing so | Another party can do it if they fail to ## Footnote Must also file sufficient copies for service on themselves and other parties at same time

Question 47

Is a judgement or order effective from date it is given/made or served?

Answer 47

Given/made

Question 48

From when does interest start to run on amount of judgement if it is included as part of claim?

Answer 48

From date on which judgement given | At 8% per annum

Question 49

How long do parties have to comply with judgement or order for payment for amount of money?

Answer 49

14 days from date of order

Question 50

What is a stay of execution of judgement/order and when would court allow it?

Answer 50

* **Stay of execution** = more time to pay/take steps ordered before enforcement possible * Would be allowed on grounds of matters which have since occurred from date of judgement or order on application by party against whom judgement made (e.g. pending appeal against judgement or order)

Question 51

What does the Debt Respite Scheme allow who to get?

Answer 51

Allows **individual debtor** (not company) to ask for breathing space of 60 days on basis they are unlikely to be able to repay debts

Question 52

What must the **judgement creditor** do during the breathing space period?

Answer 52

* Stop enforcement action to recover debt * Stop any interest, fees, penalties or charges for debt * Not contact debtor requesting payment

Question 53

Are all types of claim included in the scheme?

Answer 53

No - judgement for damages fro death/PI caused to someone else is excluded

Question 54

What is the general rule governing whether costs are payable by one party to another?

Answer 54

'Costs follow the event' = loser pays | Court has complete discretion