Introduction
Having got all the way through Applications, Witness Statements and Disclosure – it’s finally time to head to Trial, also known as the Final Hearing in the lower courts.
Whether you are attending the Small Claims Court, County Court or High Court – all Trials work in the same format.
One difference here is that the higher Appellant Courts – that is to say the Court of Appeal and the Supreme Court do not work quite the same, as they do not hear evidence from witnesses. This is because it is generally assumed the Judge in the Court below (ie the High Court) is capable of comprehending witness evidence and coming to a Judgement on the facts. So the Appeal and Supreme courts are only concerned with issues of law.
With that said, when sometimes there is criticism of a lower court Judge – or the appellant Courts find the Judge was somehow biased and so forth – they will remit that case back to the original court for a re-trial, with a different Judge.
1. The Introduction
In the Small Claims Court, the Judge will be usually be sitting at the end of a table in a meeting-style room – or more often than not, will be on a Zoom or Teams call.
In the County, Crown and High Court it is a little different. The Judge ‘knocks’ on the door, everyone is told “court rise”, which means stand up, until the Judge indicates you can sit down.
An introduction is usually undertaken by the Court’s Clerk, who will same something like “In the matter of A vs B, case number 1234”, before handing to the Judge.
Whichever Court you are in, the Judge will introduce the case – for example summarising the issues and so forth.
In the Small Claims and Court Courts, where people are litigants in person, the Judge will often try and initially summarise the issues, how the process will work, and set out the house rules.
In the High Court, where people are represented – or quite simply the Judge approaches things a little more ‘professionally’ – the Judge will often simply say “yes Mr X” – which an indication for Mr X to begin speaking.
2. The Claimant’s Opening
The Claimant always presents their case first. They will set out the Claimant’s case, what the allegations are, and essentially why everyone is in Court. If you are a Defendant, you need to bite your tongue until the next stage!
In the course of Opening, the Claimant will point the Judge to key pieces of evidence and law which they say make good their case.
As I explain in my post about Judges, some Judges will ask lots of questions, where as others will say nothing. Neither should be considered to be any clues as to where the Judge is sitting.
Sometimes mainly in the lower courts, Judges can interrupt, constantly. This of usually a bit of willy waiving, and because the Judge doesn’t have much advocacy experience (usually Solicitors turned Judges do this). Whilst it can be annoying, you should keep your patience, but ensure you’re not being steamrollered over any important points.
Ultimately, once you are satisfied you’ve said everything you want to say – you can conclude this by saying something like “and that is the Claimant’s case”.
3. The Defendant’s Opening
This is precisely the same the Claimant’s opening. If you are a Claimant, you must now not say any more.
It is the Defendant’s chance to explain to the Court why they disagree with the Claimant’s case, what they dispute as a matter of fact or law – and why the Claim should be dismissed.
4. Cross Examination
This is where the party’s get to ask questions to each others’ witnesses.
Firstly, the Defendant will cross-examine the Claimant’s witnesses.
Then, the Claimant will cross-examine the Defendants witnesses.
The official aim is to assist the Court understand the party’s respective case and challenge the evidence – but the reality is that most people will use this as an opportunity to discredit the witness. Usually the tone of cross-examination is adversarial and confrontational. Don’t be surprised if witnesses are accused of lying, being dishonest, and so forth.
In theory, according to the Rules, you can ask any question to the Witness which pertains to the case. Most people will go for the Witness Statement and find inconsistencies. However the Rules permit you to ask a Witness about a Statement of Case.
To give two examples:
Witness Statement Challenging: “Mr Jones, you say at Paragraph 5 in your witness statement you were at the Train Station at 4:30pm – but if I take you to page 56 of the Trial Bundle, this is photo of you in the office at this time – please can you explain this?”
Statement of Case Challenging: “Mr Smith you are the company’s accountant. At Paragraph 23 of the Particulars of Claim you say the company has lost £23,000,000. This has not been quantified any any document. Please explain why, and how this has been quantified?”
You can start to get the picture.
5. Discussion/Argument
Where there are issues of law or other matters, the Judge may invite the parties to enter into “Discussion”. This isn’t closing the case, but it is arguing certain specific issues, and will be a little more ‘flip flop’ than hearing at length from one side for a long period of time.
6. Claimant’s Closing
Assuming that the Trial is short, the Claimant will need to close their case immediately after cross-examination or discussion. This means:
- How or why listening to the Defendant’s position make the Claimant’s case stronger
- A summary of inconsistencies in the evidence – ie photos, documents, etc
- A summary of witnesses, inconsistencies, crediblity issues, etc
- A summary of how the witness evidence and documentary evidence discredit the Defence
- Any issues of Law the Court needs to consider.
In long complex cases in the High Court, parties will often adjourn for several days to compile closing submissions – which can be several hundreds of pages.
7. Defendants’s Closing
This works in the same way as the Claimant’s closing.
8. Judgement
Depending on the complexities of the case, the Judge may decide to form Judgement on the same day – or at a later stage.
If the issues are simple, the Judge may immediately be able to form Judgement.
In slightly more complicated cased, the Judge may adjourn for an hour or so to form a Judgement.
In complex cases, and most High Court actions (unless the Judge can deal with quickly), the Judge will often “reserve judgement” meaning they will consider the matter, the law, the evidence, the facts, etc over several weeks or months – and usually provide a written judgement.
Conclusion
This is a simple view as to how Trials and Final hearings work – and in theory over about about 1 day.
In much more complex cases, such as High Court issues will be heard over several weeks, and sometimes months. Sometimes Opening and Closing can be over several days – and sometimes witnesses may be cross-examined for several days.