- •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
6.10.6. The last conference.
It is common to have a last ‘conference’ at court on the morning when the case is due to start. For this purpose the solicitor usually arrives well before the start of the trial to meet counsel with the client for the last time. This is because late concessions, or even further offers, may have come in, often as late as the night before the trial. In addition, counsel may well have received approaches direct from his opposite number and there may be further matters to discuss. However, this ‘conference’ must clearly be distinguished from the earlier conference to which we have referred. The morning of the trial is no time for a first thorough review of matters with a client, and it is imperative that that conference comes about well in advance of the trial.
The Trial.
1. Preliminary matters.
In the High Court solicitors do not have a general right of audience in open court except those few who have obtained the Higher Courts Right of Audience Qualification, and therefore a barrister will have to be briefed.
The principle under the new rules is that the Court Service is determined that trial dates will be honoured. Great flexibility in listing, and indeed in relocating the place of trial even very late in the day, will assist in this. As has been pointed out in 14.5, a large conurbation such as Birmingham, Manchester or Bristol may well have 20 or more civil courtrooms available for use on any given day within a short radius and therefore where the judge who it was originally intended would hear the case is unavailable, for example, due to a previous case overrunning, cases may be switched at the last minute to another judge in a different court. This is obviously undesirable if the case management has taken into account that a certain judge will hear the case, but it may be better than the alternatives which may be an adjournment of indefinite length until the judge in question has a free day in his calendar.
2. The day of the trial.
On arrival at court (which should be at least an hour before the trial is listed to start) there may well be further contact with the other side. Further offers may be made and even if these do not dispose of the case entirely it may be possible at this late stage to agree some matters which will shorten the trial, for example, by agreeing computations of loss of earnings subject to liability. At the start of the trial the judge will expect the advocates to identify the main issues to let him know what is no longer in dispute.
3. The trial and case management
We have already discussed the setting of a trial timetable. The judge has very wide powers to direct the course of proceedings and may dispense with speeches and even refuse to hear certain witnesses, even though their evidence is admissible in law. A judge will seek to shorten the trial so far as is consistent with justice by directing that the witness statements exchanged stand as evidence-in-chief and that the length of oral submissions and the time allowed for examination and cross-examination are limited. He may also require written submissions to be made in advance or instead of final speeches. He will usually only require this where the end of the evidence is reached in the afternoon to give the parties the opportunity to draft the written submissions overnight.