6.4 Trial and Costs Management

Summoning witnesses

A witness summons (CPR 34.2) is a court document requiring a named person to attend court to give evidence, to produce documents, or both. There must be a separate summons for each witness. Issue is by the court where the case is proceeding or where the hearing will be held (CPR 34.3). Permission is required to issue a summons less than seven days before trial, for attendance on a date other than the trial date, or for a hearing that is not the trial. Serve the summons and offer a sum reasonably sufficient for travel and compensation for time (conduct money). A summons is not a weapon against your own reluctant client: if they will not co-operate, take a statement or a witness summary and consider the credibility cost of compelling them. It is the right tool for a third-party record-holder or an eyewitness who will not attend voluntarily. The court may set aside a summons that is oppressive or that seeks documents the person could not be required to produce at the hearing.

Pre-trial checklists, hearings and bundles

On the fast and intermediate tracks the court sends a pre-trial checklist (listing questionnaire) unless it considers the claim can proceed without one (CPR 28.4). The filing date must not be more than eight weeks before the trial date or the start of the trial period. If nobody files a completed checklist, the court orders that unless one is filed within seven days the claim, defence and any counterclaim will be struck out without further order. If checklists are filed but something is missing, the court may fix a listing hearing or give further directions. Multi-track cases use the equivalent listing machinery in CPR 29. The checklist exists to confirm that directions have been obeyed, to give a realistic trial estimate, to identify interpreters and special measures, and to stop the listing officer listing a three-day case into a one-day gap.

A pre-trial review (common on heavier multi-track claims) is a short hearing to confirm the timetable, the issues, the witnesses, and any outstanding applications. It is not a rehearsal of the closing speech.

The trial bundle is the working file for the judge, the advocates and the witnesses. Practice directions (including PD 32 and the track-specific directions) require a paginated, indexed bundle of the statements of case, orders, relevant disclosure, witness statements, expert reports and the key correspondence. One party — usually the claimant — prepares it and agrees the contents so far as possible. Dumping the entire email archive into lever-arch files is a costs own-goal. So is serving a 400-page "supplemental bundle" the night before trial. The purpose of the bundle is that everyone in the room is looking at the same page when a witness is cross-examined on a letter.

Trial procedure, address, etiquette, leading and non-leading questions

The usual civil trial shape is: claimant's short opening (often spare where the judge has read the bundle); claimant's witnesses, each adopting their statement as evidence in chief and then being cross-examined and, if necessary, re-examined; defendant's case in the same pattern; closing submissions (sometimes defendant first if the legal burden sits in a particular way, but the everyday pattern is claimant then defendant). The judge may give an ex tempore judgment or reserve it.

Modes of address in the civil courts of England and Wales:

Stand when the judge enters or leaves, and when you address the court. Do not interrupt another advocate. Speak through the judge, not across the well of the court at the opponent. Mobile phones off. If you need to take instructions, ask. A newly qualified solicitor who treats a District Judge as "mate" or a Circuit Judge as "Judge" because that is how chambers address District Judges will look unprepared; the specification expressly tests modes of address and courtroom etiquette.

A leading question is one that suggests the answer ("The lights were red, weren't they?"). Non-leading questions are open ("What colour were the lights?"). In examination in chief and re-examination, leading is generally confined to formal or non-contentious matters. In cross-examination, leading is permitted and expected. Putting your case means giving the witness a fair chance to deal with the allegation. You do not argue with the witness, and you do not give evidence from the row behind counsel.

Nature and effect of judgment

A judgment is the court's binding determination of the dispute (or of the issue it was asked to decide). It is distinct from the order that gives effect to it, though in practice they arrive together. A final judgment after trial disposes of the claim. An interim judgment (for example summary judgment on liability, damages to be assessed) disposes of part. Money judgments are usually to be paid within 14 days unless the court specifies another date (CPR 40.11). Interest may run under the Judgment Act 1838, the County Courts Act 1984 s.74, or a contractual / statutory pre-judgment rate — use the rate the court identifies; do not invent one.

Once a final judgment is entered, cause of action estoppel generally bars the same parties from relitigating the same cause. Issue estoppel can bar a decided issue. Henderson v Henderson abuse can catch points that should have been raised first time. Judgment does not, by itself, put money in the client's account. If the defendant does not pay, you move to enforcement (section 6.6). A stay pending appeal is not automatic; you apply if you need one.

Costs management, inter-partes orders and non-party costs

Costs management (CPR 3.12–3.18) applies to most multi-track claims that are not in an excepted list. Parties (other than litigants in person) file and exchange precedent H budgets. At a CCMC the court records what is agreed and approves or revises the rest. On a later standard-basis assessment the court will not depart from the last agreed or approved budget unless there is good reason (CPR 3.18). A later significant development (an unexpected extra expert; a vacated three-week trial) is a reason to revise the budget, not a reason to ignore it. File the budget. The CPR 3.14 court-fees-only sanction is one of the most expensive unforced errors in civil litigation.

Inter-partes costs are the costs one party is ordered to pay another. CPR 44.2 gives the court discretion. The general rule is that the unsuccessful party pays the successful party's costs, but the court may make a different order after considering all the circumstances, including conduct, partial success, and admissible offers. Standard basis (CPR 44.3): reasonably incurred, reasonable in amount, and proportionate; any doubt is resolved in favour of the paying party. Indemnity basis: reasonably incurred and reasonable in amount; proportionality is not applied in the same way, and doubt is resolved in favour of the receiving party. Indemnity costs mark out-of-the-norm conduct or a Part 36 win, not ordinary success.

Interim costs orders on applications include: costs in any event; costs in the case; costs reserved; no order as to costs; and costs thrown away. A one-day (or shorter) hearing is commonly summarily assessed. Longer matters go to detailed assessment if not agreed.

Non-party costs rest on Senior Courts Act 1981 s.51 and CPR Part 46. The non-party must be added for costs purposes and given a reasonable chance to be heard. Typical targets are a controller who funds and directs the litigation for their own benefit, or a pure funder who goes beyond mere support. An ordinary insurer conducting the defence under a policy is usually in a different position from a director who trades through an insolvent company and fights a hopeless claim for their own reputation. Do not threaten non-party costs as a bluff; do apply when the real party is sitting behind an empty shell.