SQE1 Civil Litigation: Trials and Appeals Study Notes: Trial Procedures the Trial and Appeal Process for Trial and Appeals

Learning Outcomes and Syllabus Objectives

By the end of this material, students will be able to apply core legal principles and rules at the level of a competent newly qualified solicitor to realistic client-based and ethical situations regarding:

  • The Trial: Including summoning witnesses, preparation for trial (purpose of pre-trial checklists, hearings, and trial bundles), trial procedure, and the nature and effect of judgment.
  • Appeals: Including permission, destination of appeals, and grounds for appeals.
  • Key Skills: Appreciating witness summons usage, trial preparation steps, and the mechanics of the appeals process.

Note: For SQE1, candidates are generally not required to recall specific case names or cite statutory/regulatory authorities; these are provided for illustrative purposes.

Introduction to Trials and Attendance of Witnesses

Only a small number of cases reach a full trial as the vast majority settle. Success in the final hearing depends significantly on the quality of preparation. Paperwork must be adequate, and witnesses must attend when required, as judges are influenced by these factors.

General Attendance Requirements

To ensure no issues arise during trial, witnesses should:

  • Be asked at an early stage for any dates they cannot attend.
  • Be notified of the trial date without delay.
  • Have their availability details provided to the court via the directions questionnaire early on and via pre-trial checklists as the final hearing approaches.
Witness Summons (Form N20)

While most witnesses attend voluntarily (having already cooperated via witness statements), a witness summons is used if attendance is in doubt. It is a court-issued document requiring a witness to:

  • Attend court to give evidence; and/or
  • Produce documents to the court.

It also serves as proof for a witness to show their employer to justify absence from work.

Issuing and Serving a Witness Summons
  • Issuance: Form N20 should be issued at least 77 days before the required attendance date. If issued later, the court's permission is required.
  • Content: Must include the witness's name and address, court address, date and time of attendance, confirmation they are summoned to give evidence, and the amount for travel expenses and compensation for loss of time.
  • Requirement: A separate summons is required for each witness.
  • Binding Nature: A summons is binding if served at least 77 days before the attendance date.
  • Conduct Money (Rule 34.7): For service to be effective, the witness must be offered or paid:
    • (a) A sum reasonably sufficient for travel to court and returning home/to work.
    • (b) Compensation for loss of time as specified in PD 34A (based on rates for the Crown Court in criminal cases).
  • Method of Service: Served by the court unless the party requests to serve it themselves in writing. If served by the court, the party must deposit the required sums with the court.
  • Sanctions: Failure to appear can result in a fine or, in High Court proceedings, imprisonment for contempt.
Setting Aside a Witness Summons

Under r 34.3(4), the court can set aside a summons if the request for evidence is speculative, oppressive, or if the witness has nothing relevant to add.

Example: Eastleigh Forge Limited (EFL) v Marek

Bettina, an employee who witnessed Marek not wearing safety equipment, left the company and refused to respond to the solicitors. To ensure her attendance, solicitors applied for a witness summons and paid her travel and one day's wages. Bettina attended to avoid contempt proceedings.

Preparations for Trial

Counsel and Documentation

If counsel is used, they must be briefed early. In complex cases, a conference may be held to discuss and remove potential problems.

Pre-Trial Checklists (Form N170)

Used on the fast, intermediate, and multi-tracks to ensure the case is ready. Its purposes include:

  • Confirming compliance with directions and seeking any new ones.
  • State number of fact witnesses and identifying vulnerable witnesses requiring special measures.
  • Providing expert details (names, fields, joint statements, and permission for oral evidence).
  • Identifying legal representatives and assisting with time estimates/timetables.
  • Asking if less than 33 weeks' notice of trial is acceptable (Fast/Intermediate tracks).
  • Deadline: Must be filed at court no later than 88 weeks before the trial date.

Consequences of Failure to Comply:

  • If neither party complies: The court orders that the claim, defence, and counterclaim will be struck out unless the checklist is filed within 77 days.
  • If only one party complies: The court fixes a hearing to ensure trial readiness.
Listing Hearings and Pre-Trial Reviews
  • Fast Track: Listing hearing.
  • Intermediate and Multi-track: Pre-trial review.
  • Representatives must be familiar with the case and have authority to settle issues. The court will then give a time estimate, fix the place of trial, and confirm the trial date/window.
Trial Bundles

A trial bundle is an indexed and paginated file of documents needed by the judge.

  • Size: Generally no longer than 250250 pages. If over 100100 pages, numbered dividers are required.
  • Responsibility (Rule 27.7): The claimant's legal representative is responsible for preparation. If the claimant is unrepresented, the court may direct another party.
  • Filing (Rule 27.12): Filed between 77 and 33 days before the trial.
  • Contents: Claim form, statements of case, case summary/chronology, witness statements, hearsay notices, expert reports, and direction orders.
  • Requirements: Must have continuous pagination and an index. Identical bundles must be supplied to all parties and witnesses. Original documents and copies of court orders should be available at trial.
Skeleton Arguments

Required for multi-track cases to assist the court by reviewing fact submissions, propositions of law, and identifying key documents. They are usually exchanged by email at least 22 or 33 days before the trial.

The Trial Procedure

Courtroom Etiquette and Address
  • Advocates stand when speaking in open court but remain seated before district judges or in chambers.
  • Witnesses are addressed by title and surname (e.g., Mrs Rees); children by first name.
  • Modes of Address:
    • County Court: District Judge is "Judge"; Circuit Judge is "Your Honour."
    • High Court: District Judge is "Judge"; High Court Judge is "My Lord/Lady."
    • Court of Appeal/Supreme Court: Justices are "My Lord/Lady."
Questioning Techniques
  • Leading Questions (Closed): Suggest the answer or assume unproven facts (e.g., "…did they?"). Used in cross-examination for control.
  • Non-leading Questions (Open): Start with "who, what, where, when, and how" to allow the witness to tell their story. Used in examination-in-chief.
Trial Timetable and Venue
  • Fast Track: Usually lasts 11 day.
  • Intermediate Track: Usually lasts 33 days.
  • High Court: Based at Royal Courts of Justice, London, or District Registries.
Sequence of Events at Trial
  1. Preliminary Issues: Addressing procedural points like amending a statement of case or adducing additional evidence under r 32.5(3).
  2. Opening Speeches: Brief background provided by the claimant (based on the case summary).
  3. Examination-in-chief: The witness statement stands as evidence-in-chief. The witness identifies the statement and confirms its truth under oath. Amplification of statements requires a "good reason" (Rule 32.5(4)).
  4. Cross-examination: Opposing advocate discredits the witness or highlights gaps. They must put their party's case to the witness; failure to challenge implies acceptance of the evidence.
  5. Re-examination: Limited to matters arising from cross-examination. No leading questions allowed.
  6. Expert Evidence: Written or oral. The court may order experts to give evidence simultaneously ("hot-tubbing") on an issue-by-issue basis.
  7. Closing Speeches: Summary of law and facts; defense goes first, followed by the claimant.

Judgment and Costs

The Nature of Judgment
  • Timing: Delivered immediately or reserved. Effective from the day given (Rule 40.7(1)).
  • Content: Determines liability first, then reviews reasons/evidence. If the claimant wins, the court considers remedies (quantum), interest, and costs.
  • Payment: Sums ordered must be paid within 1414 days (Rule 40.11) unless specified otherwise.
Rules on Costs (Rule 44.2(2))
  • General Rule: Unsuccessful party pays the costs of the successful party.
  • Fast/Intermediate Track: Costs are fixed and assessed at trial.
  • Multi-track: The judge decides who pays; the amount is determined later at a detailed assessment hearing unless agreed.
Unfavourable vs. Hostile Witnesses
  • Unfavourable Witness: Fails to support the case properly (e.g., forgets facts). The advocate cannot cross-examine them.
  • Hostile Witness: Unwilling to support the party calling them (e.g., tells lies or contradicts statements). The party may apply to the court to declare them hostile. If granted, the party can cross-examine their own witness on previous inconsistent statements, but cannot attack their general character or criminal record.

Appeals Process

Appeals Correction of wrong decisions (private purpose) and clarifying the law (public purpose).

Grounds for Permission (Rule 52.6)

Permission is required and granted only if:

  • (a) The court considers the appeal has a real prospect of success; or
  • (b) There is some other compelling reason.
  • Second Appeals: Much rarer; must raise an important point of principle or practice.
Permission Procedure and Time Limits
  • Request: Usually made to the trial judge at the end of the trial. If refused, an application can be made to the appeal court via an appeal notice.
  • Filing Deadlines:
    • County or High Court decisions: 2121 days.
    • Appeal from CoA to Supreme Court: 2828 days.
Destination of Appeals
  • District Judge (County Court) $\rightarrow$ Circuit Judge (County Court).
  • Circuit Judge (County Court) $\rightarrow$ High Court Judge.
  • Master/District Judge (High Court) $\rightarrow$ High Court Judge.
  • High Court Judge $\rightarrow$ Court of Appeal.
  • Court of Appeal $\rightarrow$ Supreme Court.
Leapfrog Appeals

Direct appeals skipping a level of the hierarchy:

  • To Court of Appeal: If the matter raises an important point of principle/practice.
  • To Supreme Court: Very unusual; requires a point of law of general public importance (e.g., statutory construction or national importance). Requires a leapfrog certificate from the trial judge and permission from the Supreme Court.
Granting an Appeal (Rule 52.21(3))

The appellant must show the lower court decision was either:

  • (a) Wrong: Regarding law, facts, or discretion.
  • (b) Unjust: Due to serious procedural or other irregularity.

Questions & Discussion

Question 1: Negotiation breaks down and trial proceeds on the multi-track. Which statement is correct? (A) Witness summons for all witnesses. (B) Parties must complete pre-trial checklist. (C) PTR in every case. (D) Each party prepares own trial bundle. (E) Skeleton argument not required. Response: Option B is correct. Form N170 is mandatory to ensure trial readiness. A is wrong because summons are only for doubtful witnesses. C is wrong as PTRs are common but not strictly mandatory in every single instance. D is wrong because the claimant usually prepares a single joint bundle. E is wrong as skeleton arguments apply to the multi-track.

Question 2: What best describes the trial order for a breach of contract claim?Response: Option B is correct. The witness statement stands as evidence-in-chief, so the witness identification and oath are the primary oral elements initially. C is wrong because amplification requires permission. D is wrong because advocates cannot usually use leading questions on their own witnesses. E is wrong as fast-track costs are assessed immediately.

Question 3: A District Judge in County Court gives judgment. Claimant wishes to appeal.Response: Option A is correct. The appeal goes to a Circuit Judge. B is wrong as they have 2121 days, not 1414. C is wrong because they can also apply to the appeal court. D is wrong as "compelling reason" is a second valid ground. E is wrong because second appeals are exceptional and not a general right.