4. The course of the trial.

4.1. Counsel for the claimant's opening speech.

If the judge requires an opening speech, which is increasingly unlikely since there will usually have been skeleton arguments submitted in writing, then the trial will com­mence with it. In the speech, counsel will introduce the nature of the case, indicate what propositions of law he needs to rely on, if any, and set out the facts which support his case and indicate which witnesses he will call to prove them.

4.2. The evidence of the claimant and witnesses.

The order of calling witnesses is entirely up to the claimant's counsel, but it is usual for the claimant to testify before his witnesses. All the witnesses are usually present in court in a civil case, although if for any reason an advocate contends that there is any risk of collusion, the judge may order a given witness to sit outside until his time comes.

It will be remembered that as part of efficient trial management, if there are expensive expert witnesses, the court may well direct that they give their evidence consecutively out of the usual order, so that the defendants' expert may well testify after the claimant's expert, rather than in the course of the defendant's general evidence.

A witness will take the oath, identify his witness statement and confirm that it is true and then be tendered for cross-examination. It remains to be seen to what extent judges will permit witnesses to amplify their witness statements. In principle, a witness statement should be a full account of everything the witness wishes to say and it would be rash to rely on the judge permitting witnesses to amplify their statements at all, except perhaps to deal with any new matters which have arisen since the statement was signed. Even in such a case it might be preferable for an application to be made before trial for permission to put in an updated witness statement.

After the witness has confirmed his witness statement and given such other evidence as he is permitted to do he can be cross-examined by any party who did not call him. If there are two or more defendants, and indeed parties added under the Part 20 procedure, the claimant and his witnesses may be cross-examined by several counsel.

4.3 Submission of 'no case to answer'

At the conclusion of the claimant's case the advocate for the defendant may make a submission of no case to answer. This is relatively rare in civil cases, but if it is made it is decided upon the same principles as apply in criminal cases. Thus it should succeed if either the evidence adduced so far has not established some necessary element in the claimant's case, or if his evidence has been so discredited in cross-examination or is so manifestly unreliable that no reasonable court could find in his favour.

These procedures really mattered and were devised at the time when most civil trials were before a jury. In other words, after a judge had ruled against a defendant's sub­mission the matter would then be left to the jury, each party making a further closing speech. Where trials are before a judge alone the procedure is of less significance. Exceptionally it may be that some vital ingredient in the claimant's case has not been made out, so that even if all the facts given in evidence are accepted there is no basis for finding liability against the defendant, and in that situation such a submission may be appropriate.