Following the preparation and procedure covered in October’s edition of Insight, this month we turn to more practical tips for those giving evidence at or acting as advocate in trials of Liability Order proceedings before the Magistrates’ Court.

Witness evidence in civil proceedings before the Magistrates’ Court is usually by witnesses adopting the written witness statements already filed. That said, if you’re to act as a witness at trial, you should speak with whoever is representing the party for whom you’re giving evidence to confirm that is the case. It is entirely permissible for the Court to require a witness to give oral evidence on all or, more often, specific points of importance in appropriate circumstances. The other important step to take before entering the witness box is to actually read (and re-read!) your witness statement. If something has changed, notify your advocate as it is better to address that in oral evidence in chief than leave the error to be exposed in cross examination.

Cross examination is where a legal representative is limited in the extent than they can assist you. Witnesses cannot be coached on the answers they should give to questions. That said, general tips on how to approach being asked questions is entirely permissible. Any readers who’ve been a trial witness for one of my clients will at this point glaze over and skip down the page as I’ve given the same guidance to every witness I’ve ever tendered to give evidence. For anyone else, I hope these steps are helpful;

1. Listen to the question – the WHOLE of the question. Don’t start to answer before the person asking the questions has finished speaking.
2. THINK about what you’ve been asked – legal representatives and judges in particular will ask questions for a reason. Applying your mind to what you’ve been asked often results in a more helpful answer.
3. Seek clarification or rephrasing if needed- but ONLY if needed. Doing this to annoy a barrister or, worse, a judge will do you no favours but the questions should always be put to a witness in a manner they can understand.
4. Once you have heard and understood the question, answer it and ANSWER IT HONESTLY – whilst most witnesses, particularly professional witnesses, are unlikely to be outright dishonest there is a class of response which I’d term “fudging the truth”. Do not try to paper over perceived gaps when giving evidence, that is your advocate’s job in re-examination. Instead, focus on giving plain and straightforward answers to all questions, even the potentially unhelpful ones, as this will ensure the entirety of your evidence is viewed by the Court as credible.
5. Lastly, and most importantly, once you’ve answered the question fully – STOP. The witness box is not a soap box and in my view advocates should be made to work for their answers. Witnesses who go on to give a narrative beyond answering the question will at best waste time and irritate the tribunal. At worst, they will unwittingly volunteer something fatal to the case of the party who called them to give evidence (often accompanied by a look of distain on the face of that party’s advocate).

At the conclusion of the evidence, save in the unusual circumstances where the Court adheres strictly to the Rule 14 procedure discussed in the October edition, the Court will then wish to hear closing submissions from both parties.

The focus of these submissions should not be to repeat any skeleton argument or statement of case. Instead, the focus should be firstly on emphasising the strength of the evidence in your favour, whether that be points on which your witness went unchallenged or was steadfast, or points in which opposing witnesses were found wanting.

After dealing with the evidence, submissions on the legal position should be made. The focus here is upon any alternate legal points which arose based on the evidence called together with submissions to counter any legal points taken by your opponent either in writing or during the trial. It must be kept in mind that the submissions made in skeleton arguments and/or in opening focus on what the evidence was expected to be. Closing should very much focus on the evidence actually given.

At the conclusion of submissions, the District Judge or Magistrates have two options. They may either deliver Judgment on the day (which may be after a short retirement to consider the matter), or reserve Judgment to another date. Advocates should not interject during the giving of Judgment and it is essential, save where a written Judgment is provided, to take a full contemporaneous note.

If time permits, the Court will then turn to costs. As the word count doesn’t permit it, costs and consequentials hearings will be covered in a future edition.

Alex Worthington