#9857 - Trial And Judgments - BPC Civil Litigation

TRIAL

LISTING NON-SPECIALIST QBD / ChD CASES IN THE RCJ

• after directions in relation to trial period / date given, C must make appointment for a listing hearing AND inform all other parties of that appointment

• At the listing hearing, the listing officer will set a fixed date or a trial window.

COURT'S GENERAL POWER TO ADJOURN HEARINGS

• Adjournment when there is an impossibility which is out of parties’ control

• “exceptional circumstances” are required before the court will vacate a trial date on account of a failure to comply with directions e.g. fail to prepare for trial

TRIAL DOCUMENTATION

Trial Bundles

• identical paginated bundles made for

  • judge,

  • all parties, and

  • one for witnesses when giving evidence

• When?

  • C should file no more than 7 days and no less than 3 days before start date of trial (r39.5(2)).

• Whose responsibility?

  • the legal representatives of parties (PD39A para 3.4)

• What?

  • PD 39A para 3 - Unless court orders otherwise should include:

1. Claim form and all statements of case

2. Case summary (+ chronology if appropriate)

3. Any requests for further info and responses

4. All witness statements

5. Any witness summaries

6. Any notice of intention to rely on hearsay evidence under r33.2

7. Any medical reports and any responses to them

8. Any experts' reports and any responses to them

9. Any notice of intention to rely on other evidence (eg maps, plans, photographs) under r.33.6 which is NOT

   1. hearsay evidence under 33.2;

   2. Being given orally at trial

   3. Contained/an exhibit to a witness statement, affidavit or expert report; or

10. Any order given affecting the conduct of the trial

11. Any other necessary documents

    • Contents should be agreed if possible.

    • If NOT, summary of points in dispute should be included.

    • How?

      • Ring-binders or lever arch files

      • Paginated continuously throughout

      • Indexed with description of each doc and page number

      • If document at page x is illegible, it should have a typed copy numbered page xA.

      • If over 100pages should have numbered dividers

      • If number of files needed, should be numbered or distinguishable by colour

      • If a lot, a core bundle should be provided containing most essential documents, and cross-referenced with supplementary docs in other bundles

Reading Lists

• QBD and ChD - when lodge trial bundles, claimant or applicant must supply:

  • reading list for judge

  • estimated time for reading

  • estimated length of hearing

• Signed by all advocates with name, business address and telephone number

• If disagree, defendant or respondent advocate can supply a separate list and estimate

• Judge has discretion to read other material by way of preparation (even inadmissible evidence)

Case Summaries

• short, non-contentious, summary of

  • the issues, and

  • relevant procedural matters

• should be agreed by all parties if poss.

• Often useful to provide short chronology of the events

Skeleton Arguments and Authorities

• Skeleton Arguments

  • compulsory for High Court

  • sometimes required by directions in CC

  • summarising submissions and citing authorities

  • filed 2 days before trial (QBD) or with the trial bundles (ChD)

• Authorities

  • In QBD, lists of authorities to the court by 9am on day of hearing, so reports can be brought to court in advance of hearing

  • Professional etiquette is to provide to other side with list in good time before hearing

LOCATION OF TRIAL

• Usually in court where case has been proceeding

• Can be transferred for convenience of parties / availability of court resources

PUBLIC OR PRIVATE HEARING?

• General rule - should be in public (don't need to make special arrangements for public to attend)

• Private if:

1. Publicity would defeat the point of the hearing e.g. defamation

2. Involves matters of national security, including CMPs in terrorism cases

3. Confidential information involved and publicity would damage that confidentiality

4. To protect interests of a child or patient

5. If uncontentious matters re: administration of an estate or administration of trusts.

6. If it is without notice and to hold in public would be unfair on the respondent

7. If court considers it to be necessary, in the interests of justice.

• Can also order anonymity of party’s name – ONLY if strictly necessary (will balance art 8 and art 10)

CONDUCT OF THE TRIAL

• Before hearing, for each advocate court should be provided with:

  • Name;

  • Business address;

  • Qualification; and

  • Party he/she acts for

• Can restrict time for XIC, XX, etc.

Order of trial

1. Opening speech by C - outline claim and issues

   • May be dispensed with when judge has read papers

   • Usually C begins

   • D will begin only if D has admitted all issues on which C had the burden of proof, so only live issues that remain are for D to prove

2. Claimant’s case

1. Call evidence:

   • usual evidence adduced:

     • Real evidence

       • Exhibits - Handed to court to be proved during trial. Kept in custody of the court until end of the trial, unless court orders otherwise (PD39A para 7)

     • Witness evidence

       • usually a WS and in the box, but can be by deposition, by affidavit or in hearsay statements

       • call in any order, subject to trial directions

     • Views of the site

       • Judge can inspect a piece of real evidence in quo (as opposed to via a view) if proportionate to cost, in presence of both parties

     • Contemporaneous documentary evidence

2. XIC

   • WS stands as XIC (r.32.5(2))

   • IF court considers there is good reason can amplify the WS or give evidence about something which has arisen since the WS was served on other parties

   • Any disclosed WS NOT used at trial can be used by another party and put in as hearsay (but NOT to simply prove it is untrue - cannot adduce evidence own W not to be believed on oath)

3. XX

   • If more than one D, go in order on the court record.

   • Can be leading questions.

   • If fail to XX, can't ask tribunal of fact to disbelieve EIC (tacit acceptance)

4. ReX

   • Issues arising in XX.

   • CANNOT lead.

3. Submission of No Case To Answer

   • Rarely entertained by one judge alone

   • Either:

     • D put to an election whether to call evidence (usual)

       • IF decide NOT to call evidence, can make SNCTA

       • SNCTA decided based on whether C’s case established on balance of probabilities

------OR-------

• D NOT put to an election (exceptional)

  • Decide based on whether C’s case has no real prospect of success.

  • If decide has, will simply allow D to call evidence and proceed as normal

4. Defence case

   • Can make an opening speech (unusual)

   • Calls evidence in same way: XIC, XX (and ReX)

5. Closing speeches

   • IF D has called evidence, D goes first

   • C goes second

6. Application to re-open hearing and adduce further evidence

   • whether allowed depends on OO

   • only before judgment, otherwise need new hearing

7. Judgment

   • always recorded, transcript available

   • can be given immediately or reserved

8. Costs

9. Application for permission to appeal

Trial by Jury

• Right to trial by jury for claims in CC and QBD (NOT ChD)

  • Deceit

  • Malicious prosecution

  • False imprisonment

  • unless court thinks requires prolonged examination of documents / accounts OR consideration of scientific/specialist evidence beyond a jury

  • request should be made within 28 days of service of the defence

• Theoretical discretion to allow juries in other cases, including libel and slander (rare)

• The jury

  • 8 in CC

  • 12 in HC

  • discharge

    • for cause e.g. proven bias (before trial)

    • if will cause inconvenience or hardship (during trial)

    • ground of evident necessity (during trial)

  • verdicts:

    • Should be unanimous

    • If not:

      • CC – 7:1 can be accepted

      • HC – 11:1, 10:2, 10:1, or 9:1 can be accepted

Non-attendance at trial

• no party attends may strike out the whole of the proceedings;

• C does NOT attend may strike out C’s claim and any defence to counterclaim

• D does not attend may strike out D’s defence or counterclaim (or both).

• court can restore struck out proceedings / set aside judgment on application + evidence if A:

  • Acted promptly on finding out

  • Good excuse

  • Reasonable prospect of success at restored trial

THE JUDGE

Role of the judge at trial

• Will decide any applications during, e.g. admissibility of evidence

• Can put questions to witnesses

• Should NOT interrupt counsel’s flow though, especially in XX

Impartiality of the judge -“Judge must not sit in his or her own cause”

• Judges obliged to mention any possible conflict

• Any objection must be made when it arises, rather than awaiting the result

• test: would the circumstances lead a fair-minded observer to conclude there was a real possibility that the judge was biased??

  • age, gender, sexual orientation, national origin, religion, ethnicity, class, means of the judge

  • employment background of judge or his/her family,

  • political associations,

  • membership of sporting, social, or charitable bodies,

  • previous judicial decisions,

  • extra-curial utterances (textbooks, speeches, interviews, consultation papers etc),

  • previous separate instructions to act for or against any party or lawyer engaged in the current case

  • same Inn, circuit, law society or chambers as one of the lawyers

  • Personal friendship/animosity between judge and anyone other than the lawyers involved in the current case

  • Closely acquainted with a witness whose credibility was questioned

  • Ruled against credibility of same witness in a previous case in outspoken terms (not just temperate terms)

  • Any expressed views on a matter which is relevant to the issues of the current case so as to cast doubt on his/her objectivity

RIGHTS OF AUDIENCE

• Following people have rights of audience:

1. Litigants in person (exempt)

2. Counsel (all courts)

3. All solicitors in CC

4. Solicitors with Law Society higher rights qualification in HC...