#13774 - Evidence At Trial - BPC Civil Litigation

Witnesses, Evidence, Trial & Judgment

Listing for Trial & Pre-Trial Reviews ("PTR")

• A trial date can be listed by:

  • Fixed trial date;

  • Fixed trial window;

• In all cases, the Pre-Trial checklist will be sent to parties for completion by a specified date, usually within 2 weeks in FT, or a set date in MTC. Usually, covers:

  • Compliance with Directions

  • How many witnesses and dates to be avoided, special arrangements, interpreter;

  • Experts, how many, discussion between already, joint statement, oral evidence etc.

  • Legal representatives, and professional engagements.

• There is a power to adjourn hearings under r3.1(2)(b) for unavailability of witnesses etc. But if adjournment is failure to prepare for trial, court will usually refuse to adjourn. This is emphasised by PD28(5.4) (fast track) and PD29(7.4) (multi-track) requiring exceptional circumstances before the court will vacate a trial date for failure to comply with directions.

At Trial

Court will act in accordance with trial timetable, created in consultation with parties (r39.4).

Trial bundles must be filed not more than 7 days, and not less than 3 days before start of trial per r39.5. (this means clear days, so exclude start and end date!)

A company may be represented at trial by an employee if that is authorised by company and court gives its permission per r39.6. Must send the full name of company, registered number, position held by the representative, and the written authority from MD, or Board Resolution pr PD39A(5.2).

Court Advocates?

• AG may appoint Advocate to the Court ("amicus curae" briefs, formerly) where there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. The Court may appoint one in these cases. They represent no one but assist the Court. This is not a reason to give D representation because he refuses it.

• The following are not cases where Advocates to the Court should be appointed:

  • Point of law may affect Government Dept, and not represented, but court believes Dept may wish to be represented;

  • AG believes necessary for CA to intervene as a party as capacity as Guardian to the Public Interest;

  • Appropirate to Litigant in Person to have pro bono assistance.

  • In criminal trial, and D is unrepresented, and AtC would be duplicating P's duty to "Assist court on all matters of law applicable to the case"

• In these cases, Court should either invite LiP to seek legal advice and adjourn, or invite AG to contact Government Department to be represented. In final case, Prosecutor's special duty is akin to Advocate to Court, so avoids duplicity. Or could grant, in the second case, AG permission to intervene.

Trial Location

• Where case is proceeding, but may be transferred for court availability.

Non-Attendance

• r39.3 - Trial may either:

  • Proceed in absence;

  • Claim or Defence may be struck out, or any counterclaim/Defence to CC.

• r39.3(2) - Court has discretion to restore any part of proceedings that are struck out for non-attendance. It may set aside any judgment entered in such circumstances. (r39.3(3)).

• Applications must be supported by evidence.

• r39.3(5) - Orders to restore, or set aside judgment, may be granted only if Applicant:

  • Acted promptly on discovering strike out/judgment; and

  • Good Excuse for not attending (no fixed list, but unaware of hearing date is unlikely to be sufficient as a mere assertion. and

  • Has reasonable prospects of success at a reconvened trial.

• There is no residual discretion f one of the factors are missing (Barclays v Ellis).

Judge

• DJs deal with all SCT and FT cases so their trial jurisdiction is <25,000 (PD2B(11.1). DJs also hear most Pt 8 claims on multi-track. Can hear injunctions aonly if FT or SCT, or if value is below 25,000.

• Most MT cases are heard by HC Judges, or in CC by Circuit Judges and Recorders.

• But real danger of judicial bias if:

  • Personal friendship or animosity between judge and anyone other than the lawyers;

  • Or judge has expressed opinions in such terms that throw doubt on his ability to try the case objectively.

  • Judges are obliged to mention conflict and possible conflicts.

• If abandoned because of appearance of bias, Lord Chancellor is not liable for costs incurred at wasted hearing.

Public /Private Hearings

• The general rule is hearings will be public (r39.2). There is no obligation to make special arrangements for accommodating members of the public. (r39.2(2)).

• But r39.2(3) states a hearing may be conducted in private if:

  • Publicity would defeat the object of the hearing;

  • National security; (Prevention of Terrorism Act 2005, r76.22)

    • As there will be 'closed material' AG may appoint a 'special advocate' to represent interests of relevant party per r76.23, SOS(HD) v AHK.

  • Confidential information (personal finances) and publicity will damage that;

    • PD39A(1.5) lists the following within this category:

      • Claims by mortgagee for possession;

      • Claims by LL against Tenant for non-payment of rent;

      • Warrants of execution or possession when considering party's ability to pay

      • Redetermination of a judgment debt;

      • Application for charging order, third party debt order, earnings order, administration order, receivers;

      • Orders to attend court for questioning;

      • Liability of LSC funded client;

      • Application for security for costs;

      • Consumer Credit Act 1974, or I(PfFD)A 1975, or PHA 1997;

      • Trustees, or Personal Representatives.

  • Necessary to protect interests of children/patient;

  • Application made without notice and unjust for R to have public hearing;

  • Uncontentious matters relating to trusts, or deceased's estate;

  • Private hearing is necessary in the interests of justice.

• Judge can change mind at any time about privacy of hearing.

• Anonymity Orders are available, but exceptional for parties or witnesses under r39.2(4) if necessary to protect the interests of that party/witness. Potentially raise competing claims re Art 8 and Art 10.

• If hearing is public, automatic right to transcript subject to payment of fee (PD39A(1.11)). If in private, need judge's permission for transcript. (PD39A(1.12)). It should be maked "Before [title and name of judge] sitting in Private".

• NB: The venue of a hearing, or whether it's public/private, does not affect rights of audience per PD39A(1.14).

Trial by Jury

• Right to trial by jury in:

  • Deceit;

  • Malicious Prosecution;

  • False Imprisonment

  • Defamation (Libel and/or slander) - This was removed by s11 Defamation Act 2013. There is a residual discretion to allow a jury trial, but courts are extremely reluctant to exercise it.

• This right extends to claims in CC (s66 CCA 1984), QBD (s69 SCA 1981), but not ChD.

• But not absolute right, depends on whether court thinks trial requires prolonged examination of documents/scientific/local investigation which "cannot conveniently be made by a jury".

• Requests for trial by jury in a claim other than for libel and slander, should be made within 28 days of service of defence r26.11(1). Libel and slander must be tried by judge alone unless at the FIRST CMC, a party applies for trial by jury, and judge orders to that effect.

• Constitution of Jury

  • CC - 8 jurors

  • HC - 12 jurors

  • Can be challenged for cause/bias. Judge can stand down any juror who will suffer inconvenience or hardship by serving. Can be discharged during trial on ground of "evident necessity".

  • Verdicts should be unanimous, but majority verdicts of 7:1 are allowed in CC. Or 11:1, 10:2, 10:1, and 9:1 in HC may be accepted.

Rights of Audience

• These are "reserved legal activities" (s12 LSA 2007). So can only carry on if they are a "regulated person" approved by an approved regulator (s13, 176 LSA 2007). These include LS, BC, LE, LC...

• The following have rights of audience:

  • LiP (Sch 3(1)(6));

    • "McKenzie Friends" (provides moral support, take notes, help with papers, quietly give advice on conduct of case to litigant in person). Can't conduct litigation or act as advocate without court's permission. BUT have no right to address the court, or examine a witness, as only an advocate may do this with rights of audience. Permission won't usually be granted as need training, and subject to professional discipline.

  • Counsel (all courts)

  • Solicitors in County Courts (in HC need Higher Rights)

  • Persons who have express permission of court in relevant proceedings (Sch 3(1)(2));

  • Persons given right of audience by statute.

Conduct of Trial

• Before hearing, court should be provided a written statement of name and professional address of each advocates, their qualification, and the party they act for (Pd39A(5)).

• Often opening speeches will be dispensed with (Pd28(8.2) - FT) or (PD29(10.2) - MT)

• WS of W called at trial will stand as EiC unless the Court orders otherwise (r32.5(2)).

  • Amplifying WS; or

  • Giving evidence in relation to new matters arising since the WS.

• If WS is disclosed, but not used at trial, any other party may put the WS in as hearsay (r32.5(5)).

  • But, can't if that unadduced WS proves the witness would be untruthful due to general rule of evidence that a party cannot discredit their own witness (McPhilemy v The Times).

• Exhibits handed in and proved will...