- •Lecture 6. Preparing for trial and the trial.
- •Introduction.
- •6.1. Complying with court orders.
- •6.2.1 Evidence of the facts
- •6.2.1.1 Hearsay evidence
- •6.2.1.2 Notice to admit facts
- •6.2.1.3 Witnesses
- •6.2.1.4. Witness summonses and expert witnesses.
- •6.3 Production of original documents.
- •6.4 Computations in damages claims.
- •6.5 Listing of cases.
- •6.6 Trial timetables.
- •6.7 Trial bundles.
- •6.7.1 Contents of the trial bundle.
- •6.8 Skeleton arguments.
- •6.9 Final negotiations.
- •6.10. Using counsel.
- •6.10.1. Conference with counsel.
- •6.10.2 Conferences with expert witnesses
- •6.10.3. Briefing counsel.
- •6.10.3.1. Delivering the brief.
- •6.10.3.2 Contents of the brief
- •6.10.4. Where the counsel of choice is unavailable.
- •6.10.5. Counsel's fee.
- •6.10.6. The last conference.
- •The Trial.
- •1. Preliminary matters.
- •2. The day of the trial.
- •3. The trial and case management
- •4. The course of the trial.
- •4.1. Counsel for the claimant's opening speech.
- •4.2. The evidence of the claimant and witnesses.
- •4.3 Submission of 'no case to answer'
- •4.4 The defence and closing speeches.
- •4.5 Parties added under the Part 20 procedure.
- •4.6. Judgment
- •5. Further applications.
- •5.1. Interest on damages.
- •5.2. Where there has been a Part 36 payment into court or offer.
- •5.3. Interim payments and the recoupment of damages.
- •5.4. Costs.
- •5.5. Stay of execution.
- •6. Drawing up the judgment
Lecture 6. Preparing for trial and the trial.
Introduction.
In this lecture we consider the last stages of preparation for trial and some of the tactical and procedural steps that need to be taken by a party to ensure that he is ready and that his case is well prepared.
6.1. Complying with court orders.
Orders for progress to trial may have been obtained at various stages. In a fast track case there may well never have been an attendance before the court and full directions will have been given at the time of allocation, in multi-track cases and fast track cases where some complications have arisen, there will have been a case management conference (in bigger cases there may have been more than one) and also a pre-trial hearing involving the judge, who will eventually take the trial. Whatever has happened hitherto, it is vital for the parties to comply fully with all directions given and to bear in mind that the court will not permit the case management timetable to be varied by consent if that would lead to postponement of the date of trial. The date of trial or at least a 'window' of three weeks, during which the trial will fall, will have been known for many months and the parties will have had every opportunity to ensure availability of witnesses, expert witnesses and the counsel of their choice.
It is the main function of the listing questionnaire, which is usually ordered to be filed about eight to 10 weeks before the likely trial date, to confirm to the court that all directions have been completed and to update the court on the parties' estimate of the length of trial, now that all the evidence is known and the true matters in issue can be identified.
In trials which are likely to be lengthy (say three days or more) and particularly those where it is sought to have a High Court judge, probably application will have been made for a fixed date of trial many months in advance. This will assist also with ensuring availability of witnesses, particularly expert witnesses who may have many calls on their time.
Although evidence of witnesses as to the facts ought to have been exchanged some considerable time before, it is possible that issues in relation to expert evidence remain unresolved. Provided that the order permits oral expert evidence at trial, this will cause no difficulty, but there are likely to have been orders requiring the experts to meet to discuss outstanding disagreements and it is important to ensure that those meetings have taken place and that the outcome of them is known.
The importance of ensuring that a party can prove his case by admissible evidence has been constantly stressed. It is customary, in more substantial cases, to ask counsel formally to advise on evidence.
Counsel will be the person presenting the case at trial, and even if he has advised on the merits of the case once or more often, it is usual to send the papers back to him at this relatively late stage for him to consider just what appears to be outstanding, in the light of what has been conceded or agreed so far, and what evidence he thinks appropriate to prove each given point outstanding, and by what method. A full set of instructions should thus be drafted for counsel explaining all the outstanding matters, the progress of the case so far, and asking for his advice in a series of specific questions. The solicitor himself should go through the relevant matters and give his own views on the points at issue. Copies of all relevant documents should be enclosed. It may also be necessary to indicate to counsel matters that do not appear in documentary form, e.g., the contents of telephone negotiations with an opponent. Counsel will review the evidence in the whole case on both liability and quantum, thus the instruction should deal fully with matters of medical evidence, details of loss of earnings and other special damages.
It is usually appropriate to ask for counsel's advice in written form rather than at a conference, although it is also customary to have a conference with counsel at a slightly later stage, to which we shall come in due course.
When advice is received from counsel it should, of course, be implemented immediately.