Civil Trials

Order of a Civil Trial

Very similar for fast track and multi track, but time allocated to each stage will be different

1. Preliminary Applications

   1. Incl. amendment to SoC or failure to comply with previous directions / orders

2. Opening Speeches from C and D

   1. often dispensed with, as judge would have read skeleton arguments

3. C Evidence

   1. C goes first, followed by witnesses (if any)

   2. witness statement stands as chief so oral evidence is generally just cross and re-examination

4. “that is the case for C”

5. D Evidence

   1. Same rules apply as C evidence

6. “that is the case for D”

7. Closing Speeches from D and C

8. Judgement

9. Submissions on costs, interests and any other matters

   1. incl. form of order

Use of plans, photographs and models as evidence

CPR 33.6 : Unless court orders otherwise, this evidence shall not be receivable at a trial, unless party intending to put it in evidence gives notice to other parties

• Notice must be given no later than latest date for serving witness statements (if evidence of fact)

• Notice must be given when expert’s report is served (when expert evidence)

• Must give notice at least 21 days before hearing if -

  • there are no witness statements OR

  • intends to put in the evidence solely to disprove allegation made in a witness statement

Failure to attend trial

CPR 39.3 : Court may proceed with a trial in the absence of a party but -

• if no party attends, then may strike out the whole of the proceedings

• if C does not attend, may strike out claim and defence to counterclaim

• if D does not attend, may strike defence and counterclaim

Remedies to Failure to Attend Trial

CPR 39.3 : Party can apply for proceedings to be restored, or judgement to be set aside

• Any application must be supported by evidence

• Application only granted if -

  • Applicant acted promptly

  • Had good reason for not attending trial

  • Has a reasonable prospect of success at trial

Hearsay Evidence in Civil Trials

Two forms -

• Evidence is to be given by a witness giving oral evidence

• Evidence is contained in a witness statement of a person who is not being called to give oral evidence

Notice of Intention to rely on hearsay evidence

CPR 33.2 : Party who intends to rely on hearsay evidence must serve a notice on other parties which -

• identifies the hearsay evidence

• states that the party serving the notice proposes to rely on the evidence at trial

• gives reason why the witness will not be called

Notice must be served no later than latest date for serving witness statements

When Notice of intention to rely on hearsay is not required

CPR 33.3 : Duty to give notice does not apply -

• To evidence at hearings other than trials

• To an affidavit or witness statement which is to be used at trial but does not contain hearsay evidence

• To a statement which a part to a probate action witness to be put in evidence and which is alleged to have been made by the person whose estate is the subject of proceedings

• Where the requirement is excluded by a PD

Power to call witness for cross on hearsay evidence

CPR 33.4 : Court may permit other party to call maker of the statement to be cross-examined

• Application for permission to cross examine must not be made more than 14 days after notice is served on applicant

Evidence of Credibility

CPR 33.5 : If a party proposes to rely on hearsay evidence, another party who wishes to call evidence to attack the credibility of the statement-marker, must give notice of his intention to the party with hearsay evidence

• Notice must be given not more than 14 days after the day on which hearsay notice was served

Safeguards in relation to hearsay evidence

S4 Civil Evidence Act 1995 : In estimating weight (if any) of hearsay evidence, court shall have regard to any circumstances from which any inferences can be reasonably drawn as to reliability (or otherwise) of evidence

• Regard will be had to -

  • Whether it would have been reasonable and practicable for statement maker to be produced for cross

  • whether original statement was made contemporaneously with the occurrence or existence of matters stated

  • whether evidence involved multiple hearsay

  • whether any person involved had any motive to conceal or misrepresent matters

  • whether original statement was an edited

Convictions as evidence in civil proceedings

S11 Civil Evidence Act 1968 : The fact that a person has been convicted of an offence shall be admissible for the purpose of providing, where relevant to an issue in the proceedings, that he committed that offence