General
The trial represents the culmination of legal proceedings. The vast majority of proceedings will be settled long in advance of a formal trial. However, if there are matters of fact in dispute or if the outcome is finely balanced, the claim dispute may proceed to a full trial.
A claimant must prove his case on the “balance of probabilities”. This means that the judge concludes with the facts put forward by the claimant are more likely than those put forward by the defendant on disputed matters.
In a trial, facts and matters will generally be proved by verbal evidence given by witnesses under oath. The Civil Procedure Rules have simplified proceedings in some cases so that witness statements are received by the Court in place of verbal evidence.
The claimant must generally prepare a “trial bundle” within a couple of days of the start of the trial. This must consist of full details of the claim, statements of case, summary of the case, witness statement, witness summaries, notices of evidence, hearsay evidence, notice of evidence which it is intended to rely on which is not in witness statements, expert reports and responses, orders given giving directions as to the conduct of trial and other necessary documents.
Each party must prepare a case summary for use in the trial. This is to assist the Court and the parties by indicating the points which are at issue and the nature of the arguments about them. The Judge will read these in advance.
Hearing of Case
The claimant, through his advocate, may make an opening speech setting out the background to the case, the facts and issues. The claimant and his witnesses will then give evidence. In most cases the witness statement will be his so called “evidence in chief” i.e. his uncontested account of the facts. The evidence in chief is the facts as set out by the claimant and witnesses before cross examination. Alternatively, the witness may simply be asked to confirm that his witness statement is correct. If a limited examination “in chief” is allowed by the judge, then the usual rule is that the witness can not be asked “leading” questions to elicit his account of the facts. A leading question is one that suggests its answers.
“Cross examination” is the questioning by the one party’s lawyers of the other party’s witness for the purpose of examining, casting doubt and raising qualifications on his version of the facts. Leading questions are allowed. The purpose is to extract evidence for the other side and to discredit and undermine the person being cross examined so as to make his evidence less believable, either generally or in relation to specific elements. This may involve highlighting inconsistencies or improbabilities. It may involve alleging a witness is biased. If a witness has previous convictions, it is possible to cross examine on these in order to show the witness’s character in a bad light.
After cross examination, the lawyer for the party who put the witness forward, is given the opportunity to ask further questions. “Re-examination” is limited to matters arising out of cross examination. No new issues can be introduced. If, for example, some ambiguity has been left as a result of cross examination, re-examination might be an opportunity to resolve and try and restore the witnesses’ credibility. After evidence has been given, the defence advocate can usually make a speech followed by the claimant’s advocate.
The judge may give his judgement immediately, after a short adjournment or it may be reserved until a later date. If the Court gives judgement on a claim and counterclaim and there is a balance in favour of one party, the Court will order the party whose judgement is for the lesser amount to pay the balance.
Interest will normally be awarded, provided it has been claimed. There may be entitlement to interest under the terms of the relevant contract or under the Late Payment of Commercial Debts (Interest) Act. Interest may be awarded on damages at the rate of 8% per annum from the date of the relevant incident up to the date of judgement. Interest arises after judgement at a rate set by law from time to time.
Expert Witnesses
Traditionally, both parties had unfettered rights to offer expert evidence. However, the Court as part of its case management powers will limit expert evidence to what is reasonably required to resolve the dispute. The Rules make it clear that although an expert may be hired by one party, his overriding obligation is to use his expertise to assist the Court. This duty is deemed to override any obligation to the party from whom he has received instructions or by whom he is paid. Experts are required to be completely objective and unbiased.
This usually happens at the case management/direction stage. The Civil Procedure Rules provide that no party may call an expert and put forward an expert’s report without the Court’s permission. Permission will usually be granted at the direction stage. The person applying for permission must identify the field in which he intends to rely on the expert evidence and details of the expert in that field and on whose evidence he proposes to rely.
The Court may decide that no expert evidence is to be produced at all. Alternatively, it may limit the number of expert witnesses and may direct that evidence is to be given by one expert chosen by agreement or chosen in such manner as the Court decides.
The Civil Procedure Rules give detailed instructions on the contents of expert reports. They must be addressed to the Court and not to the party giving the instructions. They must detail the expert’s qualifications and give details of the literature and material upon which he has based his report and set out any experiments or tests that have been carried out. Where there is a range of opinions on a particular matter, the expert must summarise the range of opinions and give reasons for his own opinion. It must contain summaries and conclusions for each. The expert must specifically state that he understands his duty to the Court. His statement must set out the substance of all instructions given that are relevant to the opinion. Where there is a qualification on an opinion, the qualification must be fully stated.
After the expert’s written report has been disclosed, the party who did not instruct him may put written questions about his report. The written questions must be put within a certain time limit and must clarify the report. The answers are to be treated as part of the report.
Where there is more than one expert, the Court will usually direct a discussion after exchange of reports and require them to identify and discuss issues and where possible reach agreement on them. The Court usually directs that after discuss the experts must prepare a statement which shows the issues that are agreed and those which are disagreed. Their report must summarise the reason for disagreement. The content of discussions cannot be referred to unless the parties consent.
Where the parties cannot agree joint instructions they may give separate instructions. Where a party is dissatisfied with an expert’s report he must first submit reasons to the expert. If this does not resolve the position, the dissatisfied party can apply to the Court to call another expert. This permission will only be granted if the Court is satisfied it would be unjust not to grant it.
Costs
The general rule is that the loser in litigation, pays the winner’s costs. In reality the receiving party will not receive a full indemnity in relation to costs. The paying party will challenge particular items, arguing the works was unnecessary or performed too expensively.
While the unsuccessful party will generally be ordered to pay the costs of the successful party, the Court may make a different order if it thinks appropriate. All the circumstances would be considered, including the conduct of the parties, whether the parties succeeded in part of his case, whether there has been a payment into Court or there has been an offer to settle. A successful claimant who has rushed a matter in a heavy handed way into Court, against a smaller opponent without genuinely seeking to negotiate, can be penalised in costs.
The general rule is that the Court should, if possible, make a summary assessment of the costs at the conclusion of the case. To assist the Court in making a summary assessment, the parties must file and serve a breakdown of their costs at least 24 hours before the hearing. There are certain limitations on the amount of costs a Court may award. This depends on the value of the claim.
In multi-track cases, the detailed assessment procedure is commenced by a party serving notices and a copy of a bill of costs. This must be done within three months of the date of the judgement. They are usually prepared by legal cost accountants either in legal firms or externally. The paying party has 21 days from service of notice. Where a winning party has funded litigation by a conditional fee agreement he is likely to pay the solicitor a success fee. He may also have paid a premium for “after the event” insurance. Where the costs order is made in that party’s favour, the costs payable include a success fee and the premium. The paying party is liable for the success fee and premium only to the extent that they are reasonable and where the standard basis applies, are proportionate.
