Trial [and error ] – Part 1

Image: Nicola Ricca/riccanicola/Unsplash
Image: Nicola Ricca/riccanicola/Unsplash

Building on earlier articles, looking at the process of obtaining Liability Orders from the issue of a summons onwards, we have now arrived at trial.

This will often be a tense time for billing authorities and ratepayers alike owing to the time, cost and effort which is invariably involved in getting that far. Presently, pressures on Court resources can result in periods of up to 12 months before a trial listing especially where the matter is to be heard by a District Judge. Similarly, parties will have invested time and more likely than not, thousands of pounds in legal fees putting forward their positions and evidence in support.

Against that background, the importance of preparing properly for trial cannot be underestimated.

The first step is to know which points remain in issue. In the July edition, we analysed the key stages of the litigation process at which advice and analysis should occur. From this, any issue which has become irrelevant to liability or is agreed should have been identified and set to one side. This enables both parties to focus on the key points relevant to liability which are still in dispute.

From there, the second step is good housekeeping. With a known list of issues should come a known list of relevant evidence and witnesses. Usually in accordance with directions, but in any event ideally no less than a week before trial, the relevant evidence should be compiled within a single bundle of documents, appropriately tabbed and paginated. This not only allows for ease of navigation in the courtroom, but ensures all parties know what is to be considered by the Court without any surprises.

As for witnesses, the number of witnesses, manner in which they’ll give evidence and the number of points on which they’ll be cross-examined should be realistically set against the trial time estimate. Where it is obvious in the course of preparing for trial that all of the evidence cannot be heard in the allotted time, the Court should be notified at the earliest opportunity so that a more appropriate listing can take place. If legally represented, this is always a conversation to be had with the trial advocate as they’ll have a view on how long is needed for each witness together with any opening and/or closing submissions. Don’t forget to also factor in time for the Court to give its Judgment and determine any costs issues.

Hopefully with the papers in order and sufficient time to deal with the identified issues, the matter will get into the Courtroom. Those looking for reference points will find the primary legislation dealing with the hearing of complaints and non-attendance of parties in Sections 53 to 57 of the Magistrates’ Courts Act 19801.

More detail as to the order of events during trial is contained within Rule 14 of the Magistrates’ Courts Rules 19812. This procedure permits the complainant to address the Court, before then being required in any event to call its evidence. The respondent is then permitted to address the Court, whether or not it calls evidence. In circumstances where the respondent doesn’t intend to call evidence, this is an effective submission of no case to answer.

Practically, if the respondent intends to call evidence, it will save its right to address the court until after it has called evidence or risks not being permitted to make submissions following its own evidence. The Court can still permit a second set of submissions from a party on request, but if permitting one party it cannot refuse the other and where both parties take up the offer it is the respondent’s submissions which come first in time.

However, the 1981 Rules are frequently disapplied pursuant to the Court’s discretion in favour of a more Civil Procedure Rules style approach.

The starting point in a CPR style approach, unless the parties have filed skeleton arguments and the tribunal has been afforded the luxury of time to read the papers, will be a short opening from each party’s legal representative. The complainant will then call its evidence, with each witness in turn giving evidence in chief, being cross examined and re-examined. The Court will then invite the respondent to call its evidence before hearing closing submissions from the respondent and, lastly, the complainant (albeit closing submissions can be reversed in order where only the complainant is legally represented).

Thereafter, ideally within the listed hearing time, the Court will give its Judgment. Frequently, owing to timetables slipping or issues being of considerable complexity, the Court will instead elect to reserve Judgment and deliver it in written and/or oral form at a later date. Whether reserved or not, written or oral, the Judgment given is of the same effect.

Practical tips for witnesses and advocates along with a look at the costs consequences will have to wait for the Part 2, so stay tuned.

Alex Worthington





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