DR WS 12
Trial and Post-Trial Issues
Final Preparations for Trial
Briefing Counsel
When Counsel should be instructed well in advance of trial date
How Brief which should contain:
o Copies of all the relevant documents which are required at the trial
o The facts of the issue and how they are to be proved, even if barrister is familiar
with the case
Whether there will be a conference with counsel BEFORE hearing depends on extent to which
there have already been conferences in the past; the value, importance and complexity of the
case
Price If acting for private/commercial, solicitor negotiates brief fee with counsel’s clerk following
delivery of the brief
Fast track/intermediate track: try to restrict fee to maximum amount allowed as Part 45 fixed
costs
Multi track: fee covers ONLY 1 day unless agreed otherwise
If case takes MORE THAN 1 day, counsel is entitled to charge a ‘refresher fee’ for
each additional day
Attendance of witnesses (Part 34)
Witnesses in ALL witnesses should be kept fully informed of expected trial date and should be told of date
general once fixed WITHOUT delay
Must be asked if there are any periods that are inconvenient for them to attend the trial
Details of a witness’s availability have to be given to the court on the directions
questionnaire and pre-trial checklists, listing quesstionnaires
Witnesses should served with a witness summons (Form N20), issued by the court requiring
the witness to:
o (a) attend court to give evidence; and/or
o (b) produce documents to the court
Witness summons should be served at least 7 DAYS BEFORE the trial date
o It is then binding, and the witness has to attend
o If they don’t liable to FINE and imprisonment for contempt in High Court
proceedings
o If party wishes to serve witness summons LESS THAN 7 DAYS BEFORE trial date
court permission required
At the time of serving the witness summons, the witness must be offered:
o (a) a sum reasonably sufficient to cover his expenses in travelling to and from the
court; and
o (b) such sum by way of compensation for loss of time as may be specified in PD 34A
Should ALWAYS serve a witness summons if witness doesn’t attend trial, the judge will ask
why one wasn’t served
o Serving may increase chances of court granting an adjournment of trial if that is
required due to crucial nature of missing witness’ evidence
Police officers must always be served with a witness summons will not give evidence
unless legally required to do so.
Expert Para 84-87 of the Guidance for the Instructions of Experts deals with attendance in court
Witnesses Expert are expected to:
o Keep people informed of their availability
o Make every effort to attend court if required
Witness summons should be sent only if required by the expert.
1
,DR WS 12
Failure to inform expert of trial date being fixed AND failing to act promptly when informed
by expert that they are UNABLE to attend trial = likely that application to vacate trial date is
dismissed (Mitchell v Precis)
Trial
Trial bundles
Contents Claimant must file the trial bundle not more than 7 days and not less than 3 days before trial
PD32, para 27.5 Unless the court orders otherwise, the trial bundle should include a copy of:
(1) The claim form and all statements of case.
(2) A case summary and/or chronology where appropriate.
Case summary
Fast track trial: contents of case summary should be agreed by parties
Should not exceed 250 words should outline matters still in issue and refer to relevant
documents in trial bundle
Should be a neutral summary setting out contentions of ALL parties
Aim is to summarise case before the court for the assistance of the judge before the trial
Skeleton Argument
Intermediate, multi-track cases: each party’s advocate will prepare a skeleton argument to use
at trial
Designed to assist COURT AND PARTIES by indicating:
o What points are/are not in issue
o Nature of the argument about the disputed matters
This should:
o Concisely review the party’s submissions of fact in relation to each of the issues with
reference to evidence
o Concisely set out the propositions of law advanced
o Refer to the main authorities
o Be divided into numbered paragraphs
o Identify key documents which the trial judge should, if possible, read before trial + an
estimate of time needed to read the documents
Formalities:
o Avoid formality
o Use understandable abbreviations
o Include name and contact details of advocate who prepared it
o Be brief as the issues allow
o No longer than 20 pages of double-spaced A4 paper
Parties usually file with court and exchange skeleton arguments by email at least 2/3 clear
days before trial
Advocates’ oral submissions should follow their skeleton argument
Khader v Aziz: “Skeleton arguments should NOT be prepared as verbatim scripts to be read out in public
or as footnotes theses to be read in private. Good skeleton arguments are tools with practical uses: an
agenda for the hearing, a summary of the main points, propositions and arguments to be developed
orally, a useful way of noting citations and references, a convenient place for making cross references,
a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-
taking by the court”.
(3) Requests for further information and responses to the requests.
(4) All witness statements to be relied on as evidence (only ones got permission for)
(5) Any witness summaries.
(6) Any notices of intention to rely on hearsay evidence under rule 33.2.
(7) Any notices of intention to rely on evidence (such as a plan, photograph etc) under
rule 33.6 which is not—
(a) contained in a witness statement, affidavit or expert’s report,
2
, DR WS 12
(b) being given orally at trial,
(c) hearsay evidence under rule 33.2,
(8) Any medical reports and responses to them.
(9) Any expert’s reports and responses to them.
(10) Any order giving directions as to the conduct of the trial, and
(11) Any other necessary documents.
Formalities:
o Documents in the trial bundle should be copied double-sided (Para 27.15, PD 32)
You DO NOT have to include:
The parties’ disclosure lists.
If the trial bundle is VERY LARGE a ‘core’ bundle of key documents to be read by the trial
judge should be prepared
Original documents PD32 para 27.6
Originals of the documents contained in the trial bundle, together with copies of any other
court orders should be available at the trial
Responsibility for PD32, Para 27.7
preparation The legal representative who has conduct of the claim on behalf of the CLAIMANT
Illegible documents PD32, Para 27.11
If a document to be included in the trial bundle is illegible, a typed copy should be included
in the bundle next to it, suitably cross-referenced
Agreed contents PD32, Para 27.12
The contents of the trial bundle should be agreed where possible, and that the documents
contained in the bundle are authentic (even if not disclosed under P31)
May be treated as evidence even if notice under the Civil Evidence Ac t ‘95 not been served.
Where agreement is not possible, a summary of the points on which the parties are unable
to agree should be included
Identical bundles PD32, Para 27.13
The party filing the trial bundle should supply identical bundles to all the parties to the
proceedings and for the use of the witnesses.
SHOULD BE DOUBLE SIDED
Timings/ Unless the court orders otherwise, the trial bundle must be filed not more than 7 days and not
When filed? less than 3 days before the start of trial.
Trial bundle should include an ESTIMATEED LENGTH of reading time and an agreed
estimate of the likely length of the hearing
Structure of the trial
Venue Trial takes place at a hearing centre (throughout England and Wales) may NOT be the same
location that managed the case
High Court is based at Royal Courts of Justice (London)
District Registries in many cities also act as trial centres
Timetable Trial timetable usually fixed AFTER filing pre-trial checklists (listing questionnaires)
May limit time for cross-examination and re-examination of each particular witness
Complex, long multi-track cases: timetable usually set at PRE-TRIAL REVIEW
Trial Timetable At trial, judge may confirm/vary any timetable given previously
o Judge may set own timetable if none given previously
Fast track trial: usually completed within 1 day
o If lasting MORE THAN 1 DAY, judge will normally sit on next court day to complete the trial
o Multi-track case judges will normally sit on CONSECUTIVE court days UNTIL trial completed
Intermediate track trial: usually completed within 3 DAYS
Typical fast track trial timetable for a day’s trial:
o Opening speeches: 20 minutes
o Cross-examination and re-examination of claimant’s witnesses: 90 minutes
o Cross-examination and re-examination of defendant’s witnesses: 90 minutes
o Defendant’s closing submissions: 15 minutes
o Claimant’s closing submissions: 15 minutes
o Judge preparing and delivering judgment: 30 minutes
3
Trial and Post-Trial Issues
Final Preparations for Trial
Briefing Counsel
When Counsel should be instructed well in advance of trial date
How Brief which should contain:
o Copies of all the relevant documents which are required at the trial
o The facts of the issue and how they are to be proved, even if barrister is familiar
with the case
Whether there will be a conference with counsel BEFORE hearing depends on extent to which
there have already been conferences in the past; the value, importance and complexity of the
case
Price If acting for private/commercial, solicitor negotiates brief fee with counsel’s clerk following
delivery of the brief
Fast track/intermediate track: try to restrict fee to maximum amount allowed as Part 45 fixed
costs
Multi track: fee covers ONLY 1 day unless agreed otherwise
If case takes MORE THAN 1 day, counsel is entitled to charge a ‘refresher fee’ for
each additional day
Attendance of witnesses (Part 34)
Witnesses in ALL witnesses should be kept fully informed of expected trial date and should be told of date
general once fixed WITHOUT delay
Must be asked if there are any periods that are inconvenient for them to attend the trial
Details of a witness’s availability have to be given to the court on the directions
questionnaire and pre-trial checklists, listing quesstionnaires
Witnesses should served with a witness summons (Form N20), issued by the court requiring
the witness to:
o (a) attend court to give evidence; and/or
o (b) produce documents to the court
Witness summons should be served at least 7 DAYS BEFORE the trial date
o It is then binding, and the witness has to attend
o If they don’t liable to FINE and imprisonment for contempt in High Court
proceedings
o If party wishes to serve witness summons LESS THAN 7 DAYS BEFORE trial date
court permission required
At the time of serving the witness summons, the witness must be offered:
o (a) a sum reasonably sufficient to cover his expenses in travelling to and from the
court; and
o (b) such sum by way of compensation for loss of time as may be specified in PD 34A
Should ALWAYS serve a witness summons if witness doesn’t attend trial, the judge will ask
why one wasn’t served
o Serving may increase chances of court granting an adjournment of trial if that is
required due to crucial nature of missing witness’ evidence
Police officers must always be served with a witness summons will not give evidence
unless legally required to do so.
Expert Para 84-87 of the Guidance for the Instructions of Experts deals with attendance in court
Witnesses Expert are expected to:
o Keep people informed of their availability
o Make every effort to attend court if required
Witness summons should be sent only if required by the expert.
1
,DR WS 12
Failure to inform expert of trial date being fixed AND failing to act promptly when informed
by expert that they are UNABLE to attend trial = likely that application to vacate trial date is
dismissed (Mitchell v Precis)
Trial
Trial bundles
Contents Claimant must file the trial bundle not more than 7 days and not less than 3 days before trial
PD32, para 27.5 Unless the court orders otherwise, the trial bundle should include a copy of:
(1) The claim form and all statements of case.
(2) A case summary and/or chronology where appropriate.
Case summary
Fast track trial: contents of case summary should be agreed by parties
Should not exceed 250 words should outline matters still in issue and refer to relevant
documents in trial bundle
Should be a neutral summary setting out contentions of ALL parties
Aim is to summarise case before the court for the assistance of the judge before the trial
Skeleton Argument
Intermediate, multi-track cases: each party’s advocate will prepare a skeleton argument to use
at trial
Designed to assist COURT AND PARTIES by indicating:
o What points are/are not in issue
o Nature of the argument about the disputed matters
This should:
o Concisely review the party’s submissions of fact in relation to each of the issues with
reference to evidence
o Concisely set out the propositions of law advanced
o Refer to the main authorities
o Be divided into numbered paragraphs
o Identify key documents which the trial judge should, if possible, read before trial + an
estimate of time needed to read the documents
Formalities:
o Avoid formality
o Use understandable abbreviations
o Include name and contact details of advocate who prepared it
o Be brief as the issues allow
o No longer than 20 pages of double-spaced A4 paper
Parties usually file with court and exchange skeleton arguments by email at least 2/3 clear
days before trial
Advocates’ oral submissions should follow their skeleton argument
Khader v Aziz: “Skeleton arguments should NOT be prepared as verbatim scripts to be read out in public
or as footnotes theses to be read in private. Good skeleton arguments are tools with practical uses: an
agenda for the hearing, a summary of the main points, propositions and arguments to be developed
orally, a useful way of noting citations and references, a convenient place for making cross references,
a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-
taking by the court”.
(3) Requests for further information and responses to the requests.
(4) All witness statements to be relied on as evidence (only ones got permission for)
(5) Any witness summaries.
(6) Any notices of intention to rely on hearsay evidence under rule 33.2.
(7) Any notices of intention to rely on evidence (such as a plan, photograph etc) under
rule 33.6 which is not—
(a) contained in a witness statement, affidavit or expert’s report,
2
, DR WS 12
(b) being given orally at trial,
(c) hearsay evidence under rule 33.2,
(8) Any medical reports and responses to them.
(9) Any expert’s reports and responses to them.
(10) Any order giving directions as to the conduct of the trial, and
(11) Any other necessary documents.
Formalities:
o Documents in the trial bundle should be copied double-sided (Para 27.15, PD 32)
You DO NOT have to include:
The parties’ disclosure lists.
If the trial bundle is VERY LARGE a ‘core’ bundle of key documents to be read by the trial
judge should be prepared
Original documents PD32 para 27.6
Originals of the documents contained in the trial bundle, together with copies of any other
court orders should be available at the trial
Responsibility for PD32, Para 27.7
preparation The legal representative who has conduct of the claim on behalf of the CLAIMANT
Illegible documents PD32, Para 27.11
If a document to be included in the trial bundle is illegible, a typed copy should be included
in the bundle next to it, suitably cross-referenced
Agreed contents PD32, Para 27.12
The contents of the trial bundle should be agreed where possible, and that the documents
contained in the bundle are authentic (even if not disclosed under P31)
May be treated as evidence even if notice under the Civil Evidence Ac t ‘95 not been served.
Where agreement is not possible, a summary of the points on which the parties are unable
to agree should be included
Identical bundles PD32, Para 27.13
The party filing the trial bundle should supply identical bundles to all the parties to the
proceedings and for the use of the witnesses.
SHOULD BE DOUBLE SIDED
Timings/ Unless the court orders otherwise, the trial bundle must be filed not more than 7 days and not
When filed? less than 3 days before the start of trial.
Trial bundle should include an ESTIMATEED LENGTH of reading time and an agreed
estimate of the likely length of the hearing
Structure of the trial
Venue Trial takes place at a hearing centre (throughout England and Wales) may NOT be the same
location that managed the case
High Court is based at Royal Courts of Justice (London)
District Registries in many cities also act as trial centres
Timetable Trial timetable usually fixed AFTER filing pre-trial checklists (listing questionnaires)
May limit time for cross-examination and re-examination of each particular witness
Complex, long multi-track cases: timetable usually set at PRE-TRIAL REVIEW
Trial Timetable At trial, judge may confirm/vary any timetable given previously
o Judge may set own timetable if none given previously
Fast track trial: usually completed within 1 day
o If lasting MORE THAN 1 DAY, judge will normally sit on next court day to complete the trial
o Multi-track case judges will normally sit on CONSECUTIVE court days UNTIL trial completed
Intermediate track trial: usually completed within 3 DAYS
Typical fast track trial timetable for a day’s trial:
o Opening speeches: 20 minutes
o Cross-examination and re-examination of claimant’s witnesses: 90 minutes
o Cross-examination and re-examination of defendant’s witnesses: 90 minutes
o Defendant’s closing submissions: 15 minutes
o Claimant’s closing submissions: 15 minutes
o Judge preparing and delivering judgment: 30 minutes
3
