Professional Ethics pre-reading (to include student materials for the 1st small group session)

7. 1 Directions

Directions are the steps to be taken by the parties and the time in which to do so. These directions are given by the court if they cannot be agreed between the parties. There are some standard directions that are often adopted in the small and fast track, but often, in the more complex multi-track claims, directions are tailored to suit the needs of the case and are discussed at case management conferences. Nonetheless, the steps noted below normally take place in some form or another in each of the tracks.

7.2 Disclosure of Documents

If the pre-action protocols have been followed, then the parties may have already had an early exchange of information and documentation. That said, disclosure of documents is still ordered by the courts and the parties need to consider what documents need to be disclosed to the other side and what documents can be inspected by the other side. Disclosure and inspection of documents is a crucial stage in the litigation process as many of the documents will have been written contemporaneously with the events in question and so may be more reliable than the recall or memory of a witness. We will look in some detail at the procedures involved in disclosure and when a party might want assistance from the court to compel a party to disclose a relevant document before or during proceedings, or perhaps to ask a non - party to the proceedings to disclose some documentation which may be helpful or harmful to one or other of the parties cases. We will also need to consider what constitutes a “document” e.g. a text message or an e-mail and how far a party will need to search for a document to ensure that it has complied with its duty to the court.

7.3 Witness Statements

It will hopefully make some logical sense to you that following the disclosure and inspection of documents, the parties should be in a good position to finalise and serve their witness statements. These statements will serve as evidence of the facts that need to be proved. The witnesses may want to comment on some of the documents which they have seen, or it may have helped the witness to clarify their version of events. In civil proceedings, the parties should not be taken by surprise and so one of the directions which will be given by the court will be a date by which any witness statements will need to be served. If a witness statement is not served on the other side, then the evidence of that witness will not be able to be relied on at trial unless the court gives permission (and this is becoming ever more unlikely due to the Jackson Reforms noted above which stress the importance of compliance with court orders such as directions). You will learn about the procedural requirements for witness statements and also how that witness will then be able to give evidence at trial. Will they still need to attend court, or is it sufficient for the party to simply rely on the witness statements of fact without the witness being present? What if a party is unable to attend trial, or is terminally ill when the evidence is taken? Is there a method by which their evidence can still be captured?

7.4 Expert Evidence

A witness is not normally allowed to give opinion evidence because it is the judge's task to draw conclusions from the facts admitted, inferred or proved in evidence. There are however situations where the judge will not have the necessary experience and so in these circumstances expert evidence/opinion may be necessary, or “reasonably required” to resolve the proceedings. Perhaps an opinion is needed on an area of scientific or medical expertise. In managing civil cases, the courts will want to ensure that the costs remain under control and permission will need to be sought from the court to be able to adduce expert evidence. The extent to which such evidence will be permitted will vary depending on the nature of the case. For example, expert evidence may be allowed in the small claims track, but the recoverability of the costs of the expert will be strictly limited.

In a straight forward fast track claim expert evidence may be permitted, but the court may order that the parties jointly instruct the expert and that the evidence is to be given in writing only in a report. Written questions can be put to the expert if there is anything which requires clarifying in the report. In a complex multi-track claim it might be appropriate for the court to allow each party to instruct their own expert and for those experts to prepare a report but also be called to court to give oral evidence and be cross examined on the content of their report. If you want to read more about experts, then take a look at CPR 35 and its accompanying PD.

7.5 Listing for Trial/ Pre -Trial Review

As the different stages of the claim start to come together, the claim will need to be listed for trial, either with a trial date or a trial window. We will also learn about pre-trial checklists and pre-trial reviews, when the courts will actively manage the case and ensure that all of the directions have been complied with. The objective will be to prevent trials being adjourned at the last minute due to lack of preparation. Are there further steps which need to be taken to ensure that the case is ready for trial? Has the case moved on to such a degree that the statements of case (e.g. the particulars of claim and or the defence) need amending to reflect the true current legal claim?

7.6 Trial
Only a small percentage of civil cases do come to trial but we will be looking at how the trial works the order of the witnesses giving evidence and we will also concentrate on the evidential issues arising from the trial. What questions can be asked of a witness? Are we able to refer to any previous convictions? What happens if the witness does not respond favourably to the questions put to them on cross examination? Are they a hostile witness? How will a small claim hearing work when the strict rules of evidence don’t even apply?