- •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
5. Further applications.
At the conclusion of the case when the judge has given his judgment, a number of applications may be necessary.
5.1. Interest on damages.
If the claimant has won he will ask for final judgment to be entered and make an application for interest on damages. In a case of some complexity, e.g., a large personal injury case with many items of special damages, where differing rates of interest are due over differing periods, calculators will be needed and there may need to be an adjournment so the parties can attempt to agree a computation of interest and save the judge's time. The parties should have attempted to agree special damage computations, subject to liability, before the trial as part of the process of exchanging schedules and counter schedules and in compliance with the overriding obligation to cooperate and narrow down the areas of dispute so far as possible.
If the case is not a personal injury case, so that there are no absolute, clear guidelines in the case law and the claimant is, for example, seeking some rate of interest which is higher than the norm, e.g., interest at a true commercial rate on a large sum of money, or interest equivalent to a rate which he has himself had to pay on borrowed money, then there may need to be argument, and even evidence, on this matter. The court has the power to award compound interest and thus computations may well be difficult. Thereafter the judge will make his award of interest.
5.2. Where there has been a Part 36 payment into court or offer.
If there has been a Part 36 payment into court or offer by the defendant, the question will be whether or not the judgment has 'beaten' it. In the case of a payment into court this is a simple matter of arithmetical calculation. The court may need to go on to consider a written offer for some other remedy, such as the terms upon which a defendant would submit to an injunction. There may need to be further arguments about whether the net effect of the judgment just delivered has been a better outcome for the claimant or not. If the ingredients in the making of an offer are complicated, for example, in a defamation case to make an apology in certain given terms, plus an undertaking that the libel will never be repeated, plus a payment into court, the issue of whether or not the claimant has done better may be the subject of lengthy submission. If the court decides that the claimant has done better than the offer, then the usual costs consequences will ensue. If it decides that he has not then in principle the award of costs will be adjusted from 21 days after the offer was communicated.
In the case of a Part 36 offer by the claimant, the court will again need to consider whether the claimant has done better than his offer or not. If he has the court ought to go on to make the awards for interest and costs as discussed further.
5.3. Interim payments and the recoupment of damages.
If there has been an interim payment this needs to be communicated to the judge so that it can be taken into account in the final form of order. Similarly, if any money can legitimately be withheld from the award in a personal injury case by the defendant under the recoupment provisions for onward transmission to the CRU (see 1.2.1.4), the figures must be to hand and communicated to the judge.