TRIAL

The trial will usually take the following steps:

  • (1)Opening by the Claimant (usually by Counsel for the Claimant). In some cases, the court will allow a Defendant to make an opening statement;
  • (2)Calling of the Claimant’s witnesses;
  • (3)Cross-examination of the Claimant’s witnesses by the Defendant;
  • (4)Calling of the Defendant’s witnesses;
  • (5)Cross-examination of the Defendant’s witnesses;
  • (6)Closing speech of the Defendant;
  • (7)Closing speech of the Claimant;
  • (8)Reply by the Defendant.

CPR 31.(1) does not empower the court to order a party to call a witness (Society of Lloyd’s v Jaffray, The Times, 3rd August 2000). However, the judge does have the power to recall a witness called by a party (Fallon v Calvert (1960) 2 QB 201).

At common law, if a witness fails “to come up to proof”, or gives an adverse evidence, such as evidence in support of the other party’s version of the facts in issue, the general rule is that the party calling a witness is not thereby entitled to turn around and seek to impeach his or her credit or otherwise cross-examine the witness as if he or she were a witness for the opposite party: the party calling a witness will not be allowed, therefore, the question witness about, or reduce evidence of, such matters as his or her bias bad character, any previous convictions, or any previous inconsistent statements.

Hostile Witnesses

A “hostile witness” is one who, in the opinion of the judge, shows no desire to tell the truth at the instance of the party calling him or her, to whom he or she displays a hostile animus. In the civil proceedings a party may call a witness who has indicated that he or she may be hostile, e.g. by refusing to make a statement or by refusing to testify having agreed to do so (CPR 32.9, a party unable to obtain the statement may seek permission to serve a witness summary instead). At common law the judge has a discretion whether to treat the witness as hostile and allow him/her to be cross examined by the person calling him or her, and the judge’s discretion will seldom be successfully be challenged on appeal.

Failure to cross-examine

A party who fails to cross-examine a witness on an issue in respect of it is proposed to contradict his evidence in chief or impeach his credit by calling other witnesses, should not be permitted to invite the tribunal of fact to disbelieve the witness’s evidence on the issue. The cross examining party must file a proper foundation by putting the matter to the witness so that he has an opportunity to give an explanation open to him (Browne v Dunn (1893) 6 R 67). It is not always necessary to put to the witness explicit that he is lying, provided that the overall tenor of the cross examination is designed to show that his account is not capable of belief (R v Lovelock (1997) Crim LR 821).

Character relevant to credit

Anyone who testifies, whether or not a party to the proceedings, is open to cross examination on his or her character insofar as it is relevant to his or her credibility as a witness, subject to the general discretion of the judge to prevent any questions in cross examination which, in the judge’s opinion, are unnecessary, improper or oppressive.

Judicial Interventions at trial

Interventions by judge during the course of oral evidence inevitably carry the risk of depriving the judge of the advantage of calm and dispassionate observation. The greater the frequency of the interventions, the greater the risk, and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one. The risk does not depend on the appearances or on what an objective observer may think, but it is that the judge may say hamper his ability properly to evaluate and weigh the evidence as to impair his judgement and, for that reason, rendered the trial unfair (Southwark London Borough Council v Kofi-Adu (2006) EWCA Civ 281).

Judgments

Often, at the conclusion of the case, the judge will hand down his judgment by way of an “extempore” judgment (meaning it is delivered orally). In more complex cases, it is usual for judges to “reserve” their judgements, and to circulate them later on in a written form. In this instance, a judge will usually invite corrections of a typographical nature (including spending and a minor factual errors, and to give them an opportunity to agree costs and to consider the appeal). Advocates should not treat the provision of a draft judgement as an opportunity to reargue the case. The purpose of disclosing a draft judgement is to obtain the help of the Council in correcting inadvertent errors and activities. Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider the point of substance e.g. by Counsel feels the judge has not given adequate reasons, or has decided the case on a point not sufficiently argued, or has relied on an authority that was not considered (Egan v Motor Services (Bath) Ltd (2007) EWCA Civ 1002). The draft judgement must be kept confidential until the judgement is formally handed down. Premature publication of the handed down judgement is a contempt of court (Re The Lawyer (2006) EWHC 1131). During the two-day period between circulation and handing down, the draft judgement can be shown, in confidence, to the parties and the legal team with immediate conduct of the case (DPP v P (No.2) (2007) EWHC 1144).

Review of Judgment

Appealing is the main way of impugning a decision. In limited circumstances of the judgment or order may be corrected and the “slip rule” (CPR 40.12(1)), and reconsidered, or recalled before it is drawn. The court has the power to correct any “accidental slip” or omission in any judgement under the slip rule. The slip rule can be used to amend an order to give effect to the intention of the court. It cannot be used to enable the court to have second, or additional, thoughts; or to correct a substantive issue; or to correct provisions which have been deliberately included in an order. It cannot be used to correct matters of substance, for which the appropriate avenue is to appeal.

Reconsideration before the judgment is drawn up

the court may reconsider a judgement after it has been pronounced provided this is done before it is drawn up. During this period factual errors can be corrected. Reconsideration should be sought only in exceptional circumstances. A judge is under a positive obligation to recall a draft judgement since the legal representatives of the parties in advance of formal pronouncement if it becomes that the draft is wrong.