PastPaperHero | Preparation for trial

Learning Outcomes

This article explains how to prepare and conduct a civil trial in England and Wales, including:

completing and filing pre-trial checklists and understanding their timing, contents, and sanctions for default
preparing trial bundles, case summaries, and skeleton arguments in line with CPR requirements
using witness summons to secure attendance or documents, including service, conduct money, and court permission issues
managing witness statements, hearsay evidence, and hearsay notices at trial
following the typical order of trial, from preliminary issues and openings to evidence, submissions, and judgment
recognising the judge’s case management powers at trial, including control of evidence, timetabling, and sanctions or relief from sanctions
identifying appropriate post-trial steps, including judgment, costs, interest, and the consequences of Part 36 offers
choosing suitable enforcement methods for money judgments and understanding jurisdictional thresholds and practical considerations
appreciating when and how appeals may be brought, the need for permission, and the limited review nature of appellate scrutiny
strengthening exam technique for SQE1 FLK1 by linking procedural rules to common fact patterns, time limits, and typical distractors

SQE1 Syllabus

For SQE1, you are required to understand the preparation and conduct of a civil trial, with a focus on the following syllabus points:

the purpose and content of pre-trial checklists (listing questionnaires) and their role in case management
the process for securing witness attendance and document production using witness summons
the typical sequence of events in a civil trial, including examination of witnesses and presentation of evidence
the judge’s case management powers during trial
post-trial steps, including judgment, enforcement, and appeals
timing requirements for key steps (e.g., pre-trial checklists, hearsay notices, witness summons)
the content, preparation and filing of trial bundles and case summaries (skeleton arguments)
evidential rules at trial, including hearsay, witness statements as evidence-in-chief, and expert evidence
costs and interest post-judgment, summary assessment on the fast track, and Part 36 consequences at and after trial

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

What is the purpose of the pre-trial checklist (listing questionnaire) and what could happen if it is not filed on time?
How can a party ensure that a reluctant witness attends court to give evidence or produce documents?
What is the usual order of proceedings in a civil trial?
Name two methods of enforcing a money judgment if the defendant fails to pay.

Introduction

Effective preparation for trial is essential in civil litigation. The Civil Procedure Rules (CPR) require parties to complete specific steps before trial, including compliance with case management directions and filing a pre-trial checklist. The trial itself follows a set sequence, with the judge actively managing proceedings to ensure fairness and efficiency. Understanding these procedures is key for SQE1.

The court’s overriding objective governs case management throughout, aiming to deal with cases justly and at proportionate cost. After allocation to a track (small claims, fast track, or multi-track), the court will set directions to move the case efficiently towards trial, scrutinising disclosure, witness and expert evidence, costs, and trial readiness.

Key Term: pre-trial checklist
A court form confirming that all required steps have been completed before trial and identifying any outstanding matters.

Pre-Trial Preparation

Pre-Trial Checklist (Listing Questionnaire)

Before trial, parties must complete a pre-trial checklist (also called a listing questionnaire). This document confirms that all directions have been complied with and identifies any outstanding issues. It covers:

compliance with disclosure and exchange of witness/expert evidence
readiness of trial bundles
identification of witnesses and experts to be called
any additional directions needed

Failure to file the checklist can result in the claim or defence being struck out or the trial being postponed.

Expand the detail for timing, content and consequences:

Timing. On the fast and multi-tracks, the completed pre-trial checklist must usually be filed and served no later than eight weeks before the trial date or start of the trial window. If neither party files, the court will typically issue an unless order requiring filing within seven days, on pain of striking out the claim, defence and any counterclaim.
Content. Parties must update the court on trial readiness, including:
- availability of the advocates, essential witnesses and any experts over the trial window
- an updated realistic trial time estimate, and (preferably agreed) trial timetable
- any further directions sought (e.g., permission to rely on additional evidence)
- costs information, including any costs budget where applicable
Listing hearing/pre-trial review. The judge reviews the checklists and may list a short hearing to iron out issues before trial. On the fast track this may be a listing hearing; on the multi-track, a pre-trial review (often at least 10 weeks before trial) is common in heavier cases to confirm compliance, fix the timetable, and address practicalities so court time is not wasted.
Sanctions and relief. Non-compliance may trigger an unless order and costs. If a party seeks relief from sanctions, the court will apply the Denton three-stage approach, considering seriousness/significance of the default, the reason for it, and all the circumstances, including efficient conduct of litigation and the need to enforce compliance.

Key Term: case summary
A concise written outline of each party’s case highlighting issues in dispute, key facts and law, and directing the judge to essential documents; also referred to as a skeleton argument.

A short, focused case summary is often required for the pre-trial review and again for trial. It should identify issues in dispute and agreement, summarise legal propositions, and cross-refer to relevant evidence. Judges expect brevity (often around 250 words) and clear pagination.

Witness Summons and Evidence Preparation

If a party is concerned that a witness may not attend court voluntarily, they may apply for a witness summons. This compels the witness to attend court or produce documents.

Key Term: witness summons
A court order requiring a person to attend court to give evidence or produce documents.

Key Term: evidence-in-chief
The initial oral evidence given by a witness at trial, usually by confirming their written statement.

Key Term: cross-examination
The questioning of a witness by the opposing party to test their evidence and credibility.

Key Term: re-examination
Follow-up questioning by the party who called the witness, limited to matters raised in cross-examination.

A witness summons must be served at least seven days before trial and should be accompanied by an offer to pay the witness’s expenses. Failure to comply may result in contempt of court.

Add procedural detail:

Permission. Court permission is required if a summons is to be issued fewer than seven days before the hearing or for a hearing other than the trial. The summons is issued by the court where the proceedings are taking place. The court often serves the summons, but a party may choose to serve it.
Conduct money. The summons must be accompanied by conduct money sufficient for travel and reasonable loss of time, otherwise it may not be enforceable.
Scope. A summons may require attendance to give oral evidence and/or production of specific documents. It may be addressed to a non-party custodian of documents.
Experts. It is unusual to summon an expert because availability is managed through case management, but the power exists.

Witness statements and hearsay at trial:

Witness statements stand as evidence-in-chief. Under CPR 32.5, if a witness is called, their statement will ordinarily stand as their evidence-in-chief. Amplification or new matters require permission and a good reason (e.g., developments since service).
If not calling a witness, a served statement can be put in as hearsay, but weight may be reduced because the maker is not available for cross-examination.
Hearsay notice. If a party intends to rely on hearsay evidence where the maker will not be called, they must serve a hearsay notice in accordance with the CPR and practice directions.

Key Term: hearsay notice
Written notice of intention to rely on hearsay evidence where the witness will not be called, enabling the other party to respond (e.g., to require attendance or attack credibility).

After service of a hearsay notice, the opposing party may, within 14 days, apply for the witness to attend for cross-examination if feasible or serve notice of intention to challenge credibility. The judge will indicate the weight given to hearsay in the judgment.

Where a party cannot secure a full statement in time, a witness summary can be served, identifying the evidence that would have been given and matters on which the witness is expected to testify.

Worked Example 1.1

A claimant is worried that a key witness will not attend trial. What should the claimant do to secure the witness’s attendance?

Answer:
The claimant should apply to the court for a witness summons, ensuring it is served at least seven days before trial and offering to pay the witness’s expenses.

Worked Example 1.2

You plan to rely on a witness’s statement but the witness is abroad and cannot attend trial. What should you do, and what can the opponent do in response?

Answer:
Serve a hearsay notice stating your intention to rely on the statement without calling the witness. Within 14 days, the opponent may apply to require the witness’s attendance if practicable or serve notice to attack credibility; the court will decide weight if the witness does not attend.

Trial Procedure

Order of Proceedings

A civil trial follows a set sequence to ensure both parties can present their case:

Preliminary matters: The judge deals with any outstanding procedural issues or applications (e.g., admissibility rulings, late evidence).
Opening statements: The claimant may make a brief opening statement outlining the case; the judge may dispense with openings if the papers are clear.
Presentation of evidence:
- Each witness gives evidence-in-chief (usually by confirming their written statement).
- The opposing party cross-examines the witness.
- The original party may re-examine the witness on matters arising from cross-examination.
- Expert witnesses may be called and questioned. The court may order concurrent expert evidence on an issue-by-issue basis where helpful.
Closing submissions: Each party summarises their case and the evidence. Typically the defendant goes first, followed by the claimant.
Judgment: The judge delivers a decision, either immediately or at a later date (reserved judgment).

Key Term: trial bundle
An indexed file containing all documents to be referred to at trial, prepared and filed before the hearing.

Expand on the trial bundle and evidential control:

Contents and filing. Unless ordered otherwise, the trial bundle should include the claim form and statements of case, case summary/chronology, requests for further information and replies, all witness statements and summaries, hearsay notices, experts’ reports, relevant orders, and other necessary documents (e.g., plans, photographs). It must be paginated and indexed. The usual order requires filing and service between three and seven days before trial, with sufficient copies for the judge, advocates and witnesses. Parties should attempt to agree contents and authenticity.
Case management at trial. Under CPR Part 32 the judge can control evidence, limit cross-examination, exclude irrelevant or repetitive evidence, and vary any agreed timetable to keep the trial efficient. In the fast track, trials are usually listed for one day and the judge often summarily assesses costs at the end.

Practical advocacy points:

Examination-in-chief is non-leading; cross-examination may be leading. Re-examination must be limited to clarifying matters arising in cross-examination. If a party serves a witness statement but does not call the witness and does not put the statement in as hearsay, the other party may do so as hearsay.
Hearsay admitted at trial may be given less weight than live evidence. The judge will identify in the judgment the weight placed on hearsay.

Worked Example 1.3

During trial, the defendant’s witness is cross-examined and gives inconsistent answers. What can the defendant’s lawyer do after cross-examination?

Answer:
The defendant’s lawyer may re-examine the witness, but only on issues raised during cross-examination, to clarify or explain the inconsistencies.

Judicial Case Management at Trial

The judge actively manages the trial to ensure it proceeds efficiently and fairly. This includes:

controlling the order and timing of evidence
ruling on admissibility of evidence
encouraging settlement where appropriate
dealing with any procedural issues as they arise

The judge may also give directions for the conduct of the trial or adjourn proceedings if necessary.

Further management tools and consequences:

Timetabling and limits. The judge can impose time limits for openings, witness examinations and closings, and may adopt or amend the parties’ proposed timetable.
Directions and compliance. Where there has been breach of a direction (e.g., late bundle, non-compliant statements), the court may make unless orders and impose costs sanctions. Relief from sanctions will be considered under the established Denton principles.
Settlement and costs. The court may explore settlement at appropriate stages, and after judgment will consider costs, including the consequences of any Part 36 offers not accepted.

Exam Warning

The court expects strict compliance with directions and deadlines. Failure to comply with pre-trial requirements, such as filing the checklist or preparing the trial bundle, can result in serious sanctions, including striking out the claim or defence. If relief from sanctions is needed, be prepared to address the Denton test and explain why relief is just.

Post-Trial Steps

Judgment and Enforcement

After hearing the evidence and submissions, the judge gives judgment. The judgment may include:

an order for payment of money
delivery of goods
an injunction

If the losing party does not comply, the successful party may apply for enforcement. Common enforcement methods include:

taking control of goods (seizing and selling assets)
charging orders (securing the debt against property)
third party debt orders (redirecting money owed to the debtor)
attachment of earnings orders (deducting from wages)

Key Term: enforcement
The process of compelling compliance with a court judgment or order.

Costs and interest:

Costs. The general rule is that the unsuccessful party pays the successful party’s costs, subject to the court’s discretion. Costs are commonly ordered on the standard basis; indemnity basis orders may be made, for example following relevant Part 36 consequences or misconduct. In fast track trials, costs are usually summarily assessed at the end of the hearing.
Part 36 at and after trial. If a claimant equals or beats its own Part 36 offer at trial, the court will usually award enhanced remedies from the day after the relevant period expired: additional amount on damages (capped), indemnity costs, and enhanced interest on damages and costs (subject to overall justice). If a claimant fails to beat a defendant’s Part 36 offer, a split costs order is typical: the claimant’s costs to the end of the relevant period, and the defendant’s costs thereafter to judgment, often with interest on those costs.
Judgment interest. Interest on High Court judgments is generally 8% under the Judgments Act 1838 and accrues during enforcement. County Court judgment interest is also generally 8% for relevant debts (commonly over £5,000) under the County Courts (Interest on Judgment Debts) Order 1991. In the County Court, statutory post-judgment interest usually ceases when enforcement proceedings are commenced (unless no recovery is made).

Choosing an enforcement method:

Taking control of goods. For County Court judgments, apply for a warrant of control; for High Court judgments (or transfers up), apply for a writ of control. As a guide: less than £600 must be enforced in the County Court; £600 to under £5,000 can be enforced in either court; £5,000 or more (save for Consumer Credit Act regulated debts) must be enforced in the High Court. Enforcement agents’ entry into dwellings is restricted; essential household items, tools of the trade and certain goods are exempt from seizure.
Charging order. Secures the debt against land, securities or certain assets. The usual route is interim charging order on paper, service and then final charging order after any hearing. An order for sale may follow to realise assets.
Third party debt order. Effective where the judgment debtor holds funds with a bank or is owed money by a third party. The order compels the third party to pay the creditor.
Attachment of earnings. Available in the County Court for employed debtors; the employer deducts funds at source until the judgment is satisfied.
Order to obtain information. If the debtor’s means/assets are unclear, the court can order the debtor to attend and provide information on oath; non-compliance risks committal.

Worked Example 1.4

A claimant wins a money judgment, but the defendant does not pay. The claimant discovers the defendant owns a valuable car. What enforcement method is appropriate?

Answer:
The claimant may apply for a taking control of goods order, allowing an enforcement agent to seize and sell the car to satisfy the judgment.

Practical notes on taking control of goods:

Procedure and paperwork include: for a County Court warrant (Form N323) lodged at the appropriate hearing centre; for a High Court writ, a certificate of judgment (often Form N293A) followed by a request for a writ lodged with the High Court and then passed to a High Court Enforcement Officer.
Mode of entry and exemptions are tightly regulated; agents may not force entry to a dwelling without consent (subject to narrow exceptions), and essential household items and tools of the trade are exempt.

Appeals

A party dissatisfied with the judgment may appeal on specific grounds, such as an error of law or serious procedural irregularity. Permission to appeal is required and must be sought promptly, usually within 21 days. The appeal court will review the original decision and may uphold, vary, or overturn the judgment.

Key points for appeals:

Permission and grounds. Permission will be granted only if the appeal would have a real prospect of success or there is some other compelling reason. Grounds include errors of law, findings no reasonable judge could reach on the evidence, or procedural irregularity causing injustice. Mere disagreement with a discretionary case management decision is rarely sufficient.
Nature of appeal. Appeals are generally a review, not a re-hearing. Fresh evidence is exceptional.
Forum. The destination depends on the judge and court below (e.g., a County Court District Judge’s decision is typically appealed to a Circuit Judge; a Circuit Judge’s decision to a High Court Judge; High Court decisions to the Court of Appeal).

Key Point Checklist

This article has covered the following key knowledge points:

The pre-trial checklist confirms compliance with directions and readiness for trial; failure to file it can result in sanctions, including strike out.
Timeframes matter: list questionnaires are typically due eight weeks before trial; witness summons must be served at least seven days before attendance; hearsay notices must be served where a witness will not be called.
A witness summons compels attendance or production of documents at trial and must be accompanied by conduct money.
Witness statements stand as evidence-in-chief; amplification requires permission and a good reason; if a witness is not called, the statement may be adduced as hearsay with notice.
The trial follows a set order: preliminary issues, opening statements (if any), evidence, cross-examination, re-examination, closing submissions, and judgment.
The judge actively manages the trial, controls evidence and timetables, and can impose sanctions for non-compliance. Relief from sanctions follows the Denton approach.
Trial bundles must be agreed and filed in good time, paginated and indexed, and include specified core documents.
Costs and Part 36 have significant post-trial implications, including indemnity costs and enhanced interest where a claimant beats its own offer, or split costs where a claimant fails to beat a defendant’s offer.
Enforcement options include taking control of goods, charging orders, third party debt orders, and attachment of earnings; interest on judgment debts and enforcement forum/thresholds must be considered.
Appeals require permission, are usually a review, and must be lodged within strict time limits.

Key Terms and Concepts

pre-trial checklist
witness summons
evidence-in-chief
cross-examination
re-examination
trial bundle
enforcement
case summary
hearsay notice

Preparation for trial - Trial procedure