- •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
6.2.1.4. Witness summonses and expert witnesses.
It is now increasingly common to serve a witness summons on expert witnesses. Popular expert witnesses may become double or treble booked for their various commitments and may even be summonsed for different trials in different locations on the same day. Although oral evidence from expert witnesses is very much the exception in fast track cases, if such evidence is needed, the window for trial should have been known for any months before, and in multi-track cases the witnesses' availability will have been one of the factors in listing the case for trial. It is still important to serve a witness summons on an expert, who can then justifiably claim that that is his primary commitment on the day in question. If he then gets a witness summons for a different case on the same day, he will be able in good faith to tell the solicitors in the second case that he is unavailable and the trial will have to be rearranged if he is to attend.
The trial date.
If a fixed date of trial is known at the time of issue of the witness summons, that date should be inserted in the summons. However, if one is to issue and serve the summons early in the case, all that will be known is that the trial will be listed in a 'window' of three weeks. In a case where the witness summons does not specify the date of trial it still binds the witness, and the solicitor concerned will 'activate' the summons for a particular date by telephoning or writing to the witness.
6.3 Production of original documents.
If a party is in possession of an original document, then that original should be produced at trial. Such a document's inclusion in a list of documents on disclosure requires the other party to give positive notice if he does not admit its authenticity, and thus the dispute about that matter can be determined before the trial. If the opposing party possesses the document, notice to produce the document should be given. If there is noncompliance with that notice the other party may prove the contents of the document by secondary means, e.g., carbon copies, photostats, or even a verbal account of what it contained.
If somebody other than one of the parties is in possession of an original document required for the trial, a witness summons should be served on that person requiring him to bring it. Under CPR, r. 31.7, one has the power to make an application for nonparty disclosure, requiring the party to produce a document for inspection. Even after it has been inspected it may still be needed for trial unless the other party is willing to accept its authenticity so that photocopies can be produced without needing the original in court.
By virtue of PD 32 (para. 27.2), all documents contained in agreed bundles at trial shall be admissible at the hearing as evidence of their contents unless the court orders otherwise, or a party gives written notice of objections to the admissibility of a particular document. It is important, therefore, to bear this in mind when 'agreeing’ documents.