The vast majority of claims commenced in the civil courts of England never reach trial. Proceedings may fail to reach the trial stage for many reasons. Judgement may be entered in default or on application for summary judgment. The proceedings may be struck out as an abuse of process, or as a result of a sanction, or discontinued. Most frequently however, the parties avoid trial by negotiating a settlement of their dispute. Though if the dispute between the parties cannot be resolved by negotiation, either party may seek to have it determined by the court.
Pre-trial checklists and fixing the date of the trial
Essentially, directions made either on track allocation or at case management conference or other directions hearing will fix a date for filing pre-trial checklists, and trial dates will be fixed as soon as possible. In fast track cases this means at the allocation stage. Trial dates may either be fixtures, which obviously means that the trial will commence on a specific date, or may be given by means of a trial ‘window’ of up to three weeks.
As a general rule, it is in the interests of the parties and the administration of justice that all issues arising in a dispute are tried at the same time. However, there are a number of rare and exceptional cases where some question or issue can be more conveniently or economically dealt with before or separately from the main trial. There are three main types of order that can be made:
- The trial of a preliminary issue on a point of law;
- The separate trial of preliminary issues or questions of fact; and
- The separate trials of the issues of liability and damages.
A party may apply for the claim to be tried by jury if there is in issue either:
- A claim in fraud; or
- A claim in respect of libel, slander, malicious prosecution or false imprisonment
Trial bundles should be filed by the claimant not more than seven and not less than three days before the start of the trial. The responsibility for the preparation of the trial bundles rests with the legal representative of the claimant.
Hearing in public or private
The general rule, is that all trials are heard in open court. the general rule does not, however, impose an obligation to make special arrangements for accommodating members of the public.
Even though a hearing may be in private, the judgment given will normally not be a secret document and thus will be considered a public document.
If both parties fail to attend the hearing the proceedings are likely to be struck out. If one side fails to attend, the court may allow the trial to proceed in the absence of that party. If it is the claimant who fails to attend, the claim and any defence to any counter-claim will usually be struck out, and judgment will almost certainly be entered for the defendant. If the defendant is absent, the claimant will usually still need to prove the claim to the satisfaction of the court although the court may strike out the defence and any counterclaim.
The general rule is that evidence is to be given orally and in public. If a witness is reluctant to attend trial, for example, if the witness has a job and is not prepared to take leave, attendance can be compelled by issuing and serving a witness summons.
The day of the hearing
Provided the claimant has the burden of proof on at least one issue, the claimant will start. The sequence is as follows:
- Claimant’s opening speech;
- Claimant’s evidence. Witnesses are called and sworn, examined in chief by the claimant, cross-examined by the defendant, re-examined by the claimant;
- If the defendant elects not to adduce evidence, the claimant then makes a closing speech, followed by the defendant’s statement of his or her case. The next stage would then be below. Otherwise:
- Defendant’s opening speech (if any);
- Defendant’s evidence;
- Defendant’s closing speech;
- Claimant’s closing speech;
- Consideration of costs.