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What needs to be done to prepare for trial?
Before the trial date or period is fixed, it will be necessary to check the availability of any counsel instructed to appear at the trial, as well as the factual and expert witnesses that may be required to give oral evidence. The courts will be very reluctant to postpone a trial date or period that has been fixed without a very good reason.
If the case has not settled, the pre-trial procedure will depend on the circumstances of the case. Some of the steps required are set out below.
What is a listing questionnaire?
The court may send the parties a listing questionnaire (or pre-trial checklist) a few months before the trial. The purpose of the questionnaire is to find out whether the parties have done everything they need to do to prepare for trial and, if not, which outstanding matters need to be addressed. The court will also seek information about the trial (such as the number of witnesses to be called) and an updated or confirmed time estimate.
What happens at a Pre-trial review (PTR)?
The court may order that a pre-trial review (PTR) be held, particularly in more substantial cases where there are significant issues between the parties. The main purposes of the PTR are to:
- Check that the parties have complied with all previous court orders and directions.
- Prepare or finalise a timetable for the conduct of the trial, including the issues to be determined and the evidence to be heard.
- Fix or confirm the trial date.
Who prepares the trial bundles?
This is usually the responsibility of the claimant’s solicitors but the court expects co-operation between the parties to try to agree the documents to be included. The deadline for the trial bundles will usually have been set by the judge at the PTR. It can be a time-consuming task and requires significant planning and attention to detail. The parties may be criticised by the court for including unnecessary documents or for poorly prepared trial bundles.
What is a skeleton argument?
Each party will be required to supply the court and the other party with a written skeleton argument, namely a written outline of that party’s case and arguments before trial. Skeleton arguments are usually drafted by counsel, but the instructing solicitors and parties should have an opportunity to consider the drafts and make comments or amendments.
How long will a trial last?
The length of the trial will depend on the complexity of the legal and factual issues to be resolved and the number of witnesses permitted to give evidence.
When is judgment handed down?
The judgment may be given immediately after the trial but is often “reserved” to a later date, particularly in complex matters. This means that the judgment will be handed down some time after the end of the trial.
What does it mean when judgment is reserved?
When the judgment has been reserved, the court will often provide a copy of the draft judgment to the parties’ legal representatives on the second working day before handing down the judgment. This is to give the lawyers (and, in some cases, the parties) time to prepare submissions on costs and to consider whether they wish to seek any consequential orders or apply for permission to appeal. The judgment is usually handed down in a short hearing at court.
Who pays the costs of the litigation?
The court has a wide discretion over the costs orders that it makes, and will consider several factors in making its costs orders, including the conduct of the parties and any Part 36 of other admissible offers to try and settle the case.
The general rule is that the costs follow the event, meaning that the unsuccessful party pays a reasonable and proportionate contribution towards the costs of the successful party. The precise size of that contribution will vary, but it will not be the entire costs incurred by the successful party. Therefore, even if you are successful in your case, you will be unlikely to recover 100% of your costs from the opposing party, and you will remain liable for the entirety of your costs. Your final costs are likely to be greater than payments you have made on account, which are neither fixed fees nor costs estimates.
What is the standard basis of assessment of costs?
The actual amount of recoverable costs to be paid is subject to an assessment process, if it is not agreed between the parties. The standard basis of assessment is to allow costs to be recovered that were reasonably incurred, or reasonable and proportionate in amount to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.
Enforcement of judgment
Once judgment has been obtained, payment of any money owed under the judgment should be made voluntarily by the unsuccessful party or judgment debtor. If payment is not made, the court does not automatically enforce the judgment. However, there are a number of enforcement procedures available to the judgment creditor to enforce payment. Examples include:
- Execution against goods owned by the judgment debtor, where an enforcement officer is commanded to seize and sell a judgment debtor’s goods.
- An attachment of earnings order, under which a proportion of the judgment debtor’s earnings is deducted by his employer and paid to the judgment creditor until the judgment debt is paid.
- A charging order over property owned by the judgment debtor.
Can I appeal against a judgment?
It is open to the unsuccessful party to apply for permission to appeal a judgment or order. An application must be made to the appeal court on paper, unless the judge whose decision is being appealed has granted permission to appeal at the judgment hearing. This application is made in an appellant’s notice, which must be filed within 21 days of the date of the decision being appealed.
There are only two bases for an appeal:
- The decision was wrong.
- The decision was unjust because of a serious procedural or other irregularity in the proceedings.
It may be necessary to apply for a stay of any order or decision contained in the judgment, if carrying out that order would defeat the purpose of a successful appeal.
Instructing our Litigation Lawyers
We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense. Liability for costs is always an issue in litigation and based on our extensive litigation experience we provide our clients with as much strategic, practical as well as carefully considered legal advice in order to ensure minimum risk in respect of costs. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our lawyer’s negotiation skills are first class. If early settlement at advantageous terms is not possible, we are extremely experienced and capable at navigating our clients through the litigation process.
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