Chapter 14: Trial Evidence

• Trial

  The point at which the court will hear the evidence and determine the claim
• The Civil Practice Rules are all about directing the efficient and effective preparation of cases for trial
• Settlement before trial


  1. Parties record the terms of the agreement, including settlement costs, in writing, in an appropriately worded 'consent order'

  2. Without this order, there is no automatic right to payment (no enforceable obligation on the paying party to pay)
• Tomlin Order


  A type of consent order that is phrased in such a way as to avoid the parties having to institute a fresh set of proceedings in the event that the agreed terms are not carried into effect
• Tomlin Order


  1. Order confirming parties have agreed settlement and case is stayed pending terms being carried out

  2. Schedule confirming amount to be paid, by whom, and date
• If a case is not capable of settlement, then it will proceed to litigation
• The SQE may make reference to Tomlin Orders, as they are a common method of documenting settlement
• Pre-trial checklist


  1. Parties use to inform the court of their preparation for the trial

  2. Confirm what should have already been done

  3. Re-estimate trial time

  4. Ascertain if parties will be legally represented

  5. Confirm estimated trial length

  6. Prepare draft directions for court consideration
• Pre-trial review


  1. Court checks compliance with previous orders

  2. Approves trial timetable

  3. Sets case management directions required for trial

  4. Preparation of trial bundles
• Witness summons


  A party may ask the court to issue a summons to compel a witness to attend court to give evidence at the trial
• Conduct money


  Money paid to a witness to cover the cost of getting to and from court and the amount they will lose by way of income for attending
• If the conduct money is not included and tendered to the witness, the witness summons is not effective
• Effect of serving a witness summons

  If the witness fails to attend, they will be in contempt of court
• Advocacy


  The process of a solicitor presenting evidence, legal arguments, and examining witnesses in court
• Instructing a barrister


  A solicitor will instruct a barrister (counsel) to represent their client at trial and be the advocate
• Modes of address for judges

  • District Judge
  • Circuit Judge
  • Master
  • High Court Judge
  • Court of Appeal Judge
• Courtroom etiquette


  • Attire: formal dress
  • Electronic devices: turned off
  • Bow to judge when entering/leaving
  • Avoid eating/drinking
  • Be courteous to judge and opponent
• Trial bundle


  Information about the parties, case summary, schedule of issues, witness statements, expert reports, etc.
• Trial format


  1. Opening submissions for claimant

  2. Opening submissions for defendant

  3. Consideration of preliminary issues

  4. Claimant's witnesses give evidence

  5. Claimant's experts give evidence

  6. Defendant's witnesses give evidence

  7. Defendant's experts give evidence

  8. Claimant's closing submissions

  9. Defendant's closing submissions
• Cross-examination


  The advocate for the other party may cross-examine a witness after they have given their evidence
• Re-examination


  The party's advocate asks their own witness questions on matters arising out of cross-examination to try to restore the witness's credibility
• Leading vs non-leading questions

  Leading questions prompt or encourage the desired answer, non-leading questions do not
• Judgment


  Judge may give judgment immediately or reserve judgment to a later date
• Ancillary matters after judgment

  1. Interest calculation

  2. Costs submissions

  3. Time to pay requests

  4. Stay of execution requests

  5. Permission to appeal applications
• Discontinuance


  1. Party must file and serve a notice of discontinuance to stop a claim before trial

  2. Claimant who discontinues is liable for defendant's costs