- •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
6.2.1 Evidence of the facts
One must consider how each relevant item of evidence will be put before the court. There are three main possibilities:
6.2.1.1 Hearsay evidence
If it is intended to adduce hearsay evidence under the Civil Evidence Act 1995, one should ensure that the appropriate notices have been given.
6.2.1.2 Notice to admit facts
This is a useful alternative to calling witnesses to give oral evidence, particularly in cases where the evidence in question will be inconvenient or expensive to adduce. The nature and purpose of the notice to admit facts has been described earlier.
A notice to admit facts must be thoroughly drafted to cover with precision the points on which agreement is sought. The notice should be served no later than 21 days before trial. The consequence, as we have seen, is that if the opposite party fails to admit a fact which he should have admitted, he will bear the costs of proving the fact at trial whatever the outcome of the trial.
If the opposing party admits the facts in question then a copy of the document containing the admission will be included in the evidence for trial.
6.2.1.3 Witnesses
It is wise to issue and serve a witness summons on all lay witnesses, even members the claimant's family or close friends who have guaranteed their cooperation in attending trial. It is always disappointing to find that witnesses may well put their own concerns (such as going on holiday) before a party's justifiable entitlement to insist that they turn up to testify at trial. Witnesses should be told that this witness summons does not represent any slight on their reliability but is merely a matter of formality. The reason for doing this is that if a witness summons has not been served and a key witness does not attend at trial, then either the judge may not permit an adjournment at all (in which case the claim may well be lost), or, if he does permit an adjournment, it will inevitably be at the cost of the party requesting it. On the other hand, if a witness summons has been served the judge will agree that there is no fault in the party requiring the adjournment and it will therefore usually be allowed without penalty. A witness summons may either:
(a) require the witness to attend court for the purpose of giving verbal testimony and this would be appropriate to ensure the attendance of an eyewitness; or
(b) require a witness to attend court to produce, and if necessary prove, the authenticity of some document or thing. For example, it may be necessary to issue a witness summons to compel a claimant's employer to attend court to bring wages and salary records with him. It may be that no other evidence from the employer is needed except to prove the authenticity of these wages records.
The method of obtaining a witness summons is to prepare two copies for each witness in the prescribed form № 20 and attend the court counter where the court will seal a copy for service. A judge is not involved and no permission from the court is needed except in two circumstances, namely:
(a) If one seeks to have the witness summons issued less than seven days before trial.
(b) If the witness summons is for a witness to attend court for any hearing except a trial (such as an interim application).
If permission is needed then applications should be made without notice to a district judge. In principle, the file will be taken to him straightaway, if an urgent decision is needed.
Once the witness summons is issued by sealing, in principle it will be served by the court, usually by post. If a party wishes to serve it himself for greater certainty, it will be returned to him. If it is to be sealed by the court then the party on whose behalf the witness summons is issued must deposit in the court office the money that has to be paid or offered to the witness.
The witness summons must be served on a witness no later than seven days before trial to be binding.
Money to be paid to a witness
By r. 34.7, at the time of service of a witness summons the witness must be offered or paid a sum 'reasonably sufficient to cover his expenses in travelling to and from the court' together with such sum by way of compensation for loss of time, as may be specified in a practice direction. PD 34 actually says that the sum referred to is based on the same sums payable to witnesses who attend the Crown Court in criminal trials and which are fixed presently by the Costs in Criminal Cases (General) Regulations 1986.