Most claims commenced in the civil courts of England never reach trial. Judgment 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. Often the parties avoid trial by negotiating a settlement of their dispute. If the dispute cannot be resolved by negotiation, however, either party may seek to have it determined by the court.
Pre-trial checklists and fixing the date of the trial
Directions will be made by a judge either on track allocation, at a case management conference or another directions hearing. S/he 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). Trials will be given a fixed date – meaning the trial will start on a specific date – or a trial ‘window’ of up to three weeks. Directions will be made for disclosure and witness statements and decisions over expert witnesses will be made.
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 some cases where a question or issue can be more conveniently or economically dealt with separately from the main trial. This may arise where there is a need for:
- a trial of a preliminary issue on a point of law;
- a separate trial of preliminary issues or questions of fact; or
- separate trials of the issues of liability and damages.
A party may apply for the claim to be tried by jury only if the issue concerns:
- 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. This does not, however, impose an obligation to make special arrangements for accommodating members of the public.
Even if a case is heard in private, the judgment given will normally 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 usually 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;
- defendant’s opening speech (if any);
- defendant’s evidence;
- defendant’s closing speech;
- claimant’s closing speech;
- consideration of costs.