6.6 Trial timetables.

The court must, in consultation with the parties, set a timetable for the trial unless it considers that it would be inappropriate to do so (CPR, rr. 28.6 and 29.8). In multi-track cases the trial timetable is likely to be set at a pre-trial review, but in other cases it will be done on paper perhaps following requests for information in writing from the parties. When parties file their listing questionnaires, they should make any appropriate representations. Among the matters which need to be considered are:

(a) Whether any opening speeches are required and if so how long will be permitted.

(b) How much time will be required for evidence-in-chief and whether the witness statements can simply be ordered to stand as the evidence-in-chief or whether time will be permitted for witnesses to amplify them.

(c) What time should be permitted for the cross-examination of each witness and what parts of the witness's evidence could be agreed.

(d) What expert evidence is to be given and how much time will be needed to cross-examine the experts.

(e) The order in which witnesses should be called.

(f) The time to be permitted for closing speeches.

If a timetable is fixed it is important that it is realistic and that it is kept to. One of the issues to which the court will want to address its mind is likely to be that of expert evid­ence where opposing experts are to be called. While normally the claimant presents his case to its end and then the defendant presents his, with expert evidence it will usually be convenient for the experts to attend on the same day so they can hear each other's evidence. That may mean interrupting the normal order of events and a direction that they attend at the same time and give evidence one after the other is likely to become the norm. When that will be in the trial is also a matter for judgment. Clearly, if they are both commenting on the state of health of the claimant, it is desirable that their evidence be given after his and it may even be desirable that they are in court while he gives his evidence. These, among others, are some of the complications which will need to be considered when the trial timetable is fixed.

In order to assist with the fixing of the trial timetable, the parties may be requested to file a statement of issues and a case summary to focus on what is really important in the case.

6.7 Trial bundles.

At the trial the judge will want the documents in convenient form for reference. He will not want to go hunting back through the court's case file in which a great variety of documents may have been filed, some of them duplicating each other, and many of them irrelevant to the trial itself. The trial bundle contains the relevant documents for the trial so that if, for example, liability has been determined in advance, the trial bundle will contain only the documents relating to quantum. If the issue for the trial is liability only with quantum to be decided later, then the converse will be the case.

In pursuit of the principles of economy and proportionality, it is expected that while the trial bundle must be complete so that no delay is caused by the need to locate other documents during the trial, it contains only what is really of significance for the trial. It used to be common, for example, for solicitors to include in the bundle virtually the whole of the correspondence between themselves since the case commenced, which might have added hundreds of pages to the bundle. This was almost certainly unneces­sary and is likely to be frowned on in the future since the judge will probably scrutinise the bundle in advance of trial and if he gives over many hours to reading documents which prove to be totally irrelevant, he is likely to be displeased. Certainly the costs of preparing multiple copies of superfluous material will be disallowed.

As much as possible of the documentary evidence should be 'agreed' between the parties. In this sense 'agreed' has the special meaning of 'agreed as authentic and relevant to the trial'. It does not indicate that the contents of such documents are agreed. It thus has a very different meaning from the context in which the word is used of, say, expert reports, where the term 'agreed' means 'agreed as to substance and truth'.

EXAMPLE

It may be that there has been a great deal of correspondence between the parties about the dispute before solicitors were ever instructed. In such correspondence, each party may have asserted, increasingly strongly, the justice of their own position and their complaints about the other party's conduct. This correspondence will be highly relevant at trial to show what was being said at the earlier stages and how the argument developed. It must therefore be put before the court. It does not, however, of course follow that each party 'agrees' with the contents of what is asserted in the other party's correspondence. What is agreed is that the correspondence is authentic and relevant and should be before the court for that reason.

It is usual for the claimant to indicate to the defendant what documents he considers material for the trial bundle and to supply a copy index; the defendant then should make any counter proposals for other material to be added to the bundle or, for example, if he considers that irrelevant and even inadmissible material has been included in the claimant's proposal to put forward his suggestions for the exclusion of such evidence from the bundle. At least six bundles are likely to be necessary for the average trial, there being one bundle for each party's solicitor and counsel, one bundle for the judge, and one to be provided to any witness in the witness box for comment during the course of his testimony.

The rules on the multi-track require a bundle to be lodged not more than seven or less than three days before trial by virtue of CPR, r. 39.5(2). Somewhat oddly, standard fast track directions in PD 28 provide that trial bundles should be lodged at least seven days before trial.