The trial and judgment - Trial proceedings

Learning Outcomes

This article explains civil trial proceedings and judgment for SQE1 candidates, including:

• Pre‑trial preparation, timing and purpose of pre‑trial checklists and reviews, and the preparation and contents of trial bundles
• Order of trial proceedings and roles of the parties, advocates, and judge
• Burden and standard of proof
• The function of witness statements at trial, hearsay notices for absent witnesses, and management of witnesses and experts
• Rules for the presentation, challenge, and judicial control of evidence, including examination‑in‑chief, cross‑examination, re‑examination, and expert evidence
• Structure of judgment and consequential orders, including liability, quantum, interest, and costs
• Costs at and after trial, bases of assessment, and the costs consequences of Part 36 offers
• Enforcement of judgments and the appeals process

SQE1 Syllabus

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

• the procedural steps and requirements for preparing a case for trial, including pre-trial checklists, witness management, and trial bundles
• the typical sequence of events in a civil trial and the roles of the parties, advocates, and judge
• the rules for presenting and challenging evidence, including examination-in-chief, cross-examination, and expert evidence
• the structure and content of judgments, including liability, quantum, interest, and costs
• the available post-trial actions, including enforcement of judgments and the appeals process
• the court’s case management powers leading up to trial (including listing, timetabling, and control of evidence) and the use of pre-trial reviews
• costs at and after trial, including bases of assessment, summary versus detailed assessment, and the costs consequences of Part 36 offers

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.

1. What is the purpose of a pre-trial checklist and what must it include?
2. Who bears the burden of proof in a civil trial, and what is the standard required?
3. What are the three stages of witness examination at trial, and what is the function of each?
4. How does the court typically determine who pays the legal costs after judgment?

Introduction

Civil trial proceedings are the final stage in litigation, where the parties present their cases and the court delivers a binding judgment. This article explains the essential steps and legal principles governing trial preparation, the conduct of the trial, the presentation of evidence, and the making of judgments and orders for costs. Understanding these processes is critical for SQE1 candidates. Trials sit within a wider, actively managed process: courts ensure readiness through directions, pre‑trial checklists, and (where appropriate) a pre‑trial review. The judge controls evidence at trial and ensures efficient use of court time, before moving to judgment, consequential orders on interest and costs, and, if necessary, enforcement or a permission-to-appeal decision. Throughout, settlement remains encouraged; the court may consider parties’ conduct, including ADR engagement and Part 36 offers, when deciding costs.

Pre-Trial Preparation

Effective preparation is essential for a fair and efficient trial. Key steps include:

• Witness Management: Confirm all witnesses are available and prepared. If there is doubt about attendance, apply for a witness summons. Identify well in advance any witness availability issues and notify the court in the directions questionnaire and again in the pre‑trial checklist so that listing can accommodate essential witnesses and experts. As a practical safeguard, agree dates to avoid (for parties, advocates, and experts) for up to 12 months ahead.

• Pre-Trial Checklists: Complete and file the pre‑trial checklist (also called a listing questionnaire) on time. On the fast track and multi-track, this is generally filed eight weeks before trial. Its purpose is to confirm compliance with directions, readiness of evidence, the number and identity of witnesses and experts to be called, whether expert reports have been exchanged, the current time estimate, and any outstanding issues. Non-compliance can trigger “unless” orders and, if persistent or by both parties, strike out of claim and defence. A listing hearing (fast track) or a pre‑trial review (multi‑track) may follow to iron out remaining issues and finalise the timetable.

• Trial Bundles: Prepare and file an indexed and paginated trial bundle containing all documents to be relied on at trial, including pleadings, witness statements, expert reports, essential correspondence, and orders. The bundle should be a single, agreed set for the court and parties (with identical copies provided for witnesses). The claimant is responsible for preparing and filing the bundle, which must ordinarily be filed not earlier than seven days and not later than three days before the start of the trial. The bundle should include a concise case summary and/or chronology (often capped at around 250 words), references to key documents, and an indication of which documents the judge should read in advance. Courts expect proportionate bundles; pagination and tabbing are essential for efficient navigation.

In the run‑up to trial, ensure all notices are in place. If intending to rely on hearsay from a witness who will not attend, serve a formal hearsay notice. If you do not intend to call a witness whose statement was served, be aware the other party may put that statement in as hearsay. Make sure any notices of questions to experts have been dealt with, and that any single joint expert or party experts have met and produced a joint statement if the court directed this. Finally, confirm that counsel is briefed in good time together with a proposed timetable for examination and cross‑examination.

Key Term: witness summons
A court order requiring a witness to attend trial or produce documents. Must be served with an offer to pay expenses and at least seven days before trial.

Pre-Trial Review

The court may hold a pre-trial review, especially in multi-track cases, to ensure the case is ready for trial. The court will:

• Review compliance with directions and the pre-trial checklist
• Address unresolved evidential or procedural issues
• Set the trial timetable and confirm arrangements for witnesses and experts

This process helps avoid delays and ensures all parties are prepared. In more substantial cases (for example, trials listed for multiple days), the pre‑trial review typically takes place at least ten weeks before trial. Representatives familiar with the case and with authority to make decisions should attend. The court may:

• Finalise the time estimate and allocate time for openings, each witness’s evidence, expert evidence (including any concurrent “hot‑tubbing” if ordered), closings, and judgment
• Confirm the number of witnesses and experts to be called, interpreters needed, and any special arrangements (e.g., video link)
• Give further directions (including ADR encouragement or a short stay), or make “unless” orders to remedy default
• Resolve any last-minute applications (e.g., to amend pleadings, to adduce late evidence, or to exclude material)

The outcome will often include a definitive timetable for trial and a direction that the consolidated trial bundle and case summary be filed within a specific window before the hearing.

The Trial: Order of Proceedings

A civil trial follows a structured sequence:

• Preliminary Issues: The court deals with any outstanding legal or procedural matters before evidence is heard. Typical examples include late applications to amend, hearsay objections, requests to exclude evidence, or housekeeping matters such as the order of witnesses. The judge may also fine‑tune the timetable in light of last‑minute developments.

• Opening Speeches: The claimant’s advocate may make an opening speech outlining the case, the main issues, and the evidence to be presented. The defendant’s advocate may also make an opening speech. In many fast track cases the judge will have pre‑read the bundle and may dispense with openings or invite very brief oral openings supplemented by a concise skeleton argument.

• Claimant’s Evidence: The claimant presents evidence, usually through witness statements confirmed in court, followed by any expert evidence. The default under the CPR is that a witness statement stands as evidence‑in‑chief; with the court’s permission, a witness may supplement their statement to clarify points or cover new matters that have arisen since service. Leading questions are not permitted in examination‑in‑chief on disputed matters.

• Defendant’s Evidence: The defendant presents their evidence in response, using the same process. Each witness is cross‑examined by the opposing advocate whose questions may be leading and designed to test credibility, reliability, and consistency. Limited re‑examination may then address matters specifically arising in cross‑examination.

• Closing Submissions: Both sides make closing submissions, summarizing the evidence and legal arguments. The usual order is defendant then claimant (though the judge retains discretion). Closings should tie evidence to the pleaded issues and the remedies sought.

• Judgment: The judge delivers a reasoned decision, addressing liability, quantum, interest, and costs. Judgment may be given immediately (ex tempore) or reserved to a later date. Consequential orders, including costs and interest, are then determined.

In the fast track, trials are normally listed for one day. A typical working timetable might allow short openings (for example, 20 minutes), approximately 90 minutes each for the parties’ factual witnesses, time for expert evidence if any, short closings (for example, 15 minutes each), and approximately 30 minutes for judgment and a summary assessment of costs. The judge may depart from any timetable in the interests of justice.

Key Term: opening speech
An advocate’s summary at the start of trial, outlining the case, key issues, and evidence for the court.

Presentation of Evidence

Burden and Standard of Proof

The claimant bears the burden of proof and must prove their case on the balance of probabilities—meaning it is more likely than not that their version is correct. Distinguish between:

• the legal (or persuasive) burden, which typically rests on the claimant to make out the cause of action; and
• the evidential burden, which may shift on particular issues (for example, a defendant advancing contributory negligence or a statutory defence will bear the evidential burden on that issue).

Allegations of fraud or dishonesty are assessed to the same standard (balance of probabilities), but cogent evidence will be required given the gravity of the allegation.

Key Term: burden of proof
The obligation to prove the facts in dispute, usually resting on the claimant in civil trials.

Key Term: balance of probabilities
The standard of proof in civil cases; the court must be satisfied that a fact is more likely than not.

Witness Evidence

Witnesses are examined in three stages:

• Evidence-in-Chief: The witness confirms their statement as true. Advocates may ask supplementary, non-leading questions to clarify points. Under the CPR, a served witness statement stands as the witness’s evidence‑in‑chief unless the court orders otherwise. With permission, the witness may supplement the statement or address new matters arising after service where there is a good reason to do so.

• Cross-Examination: The opposing advocate questions the witness to test credibility, challenge inconsistencies, or probe weaknesses. Leading or closed questions are permitted in cross‑examination to maintain control and focus on disputed points.

• Re-Examination: The original advocate may ask further questions to clarify matters raised in cross‑examination, but cannot introduce new topics. Questions are non‑leading and strictly confined to issues arising from cross‑examination.

Key Term: evidence-in-chief
The initial questioning of a witness by the party who called them, confirming their written statement and clarifying facts.

Key Term: cross-examination
Questioning of a witness by the opposing party to test the reliability and accuracy of their evidence.

Key Term: re-examination
Further questioning by the party who called the witness, limited to clarifying issues raised in cross-examination.

Practical points:

• Witness statements and exhibits: Exhibits referred to in a statement should be clearly identified and marked, remaining separate from the statement but cross‑referenced within it. The statement must be verified by a compliant statement of truth in the maker’s own language. Making a false statement verified by a statement of truth without honest belief in its truth may expose the maker to contempt of court proceedings.

• Absent witnesses and hearsay: Hearsay is admissible in civil trials, but weight is a matter for the judge. If a party intends to rely on hearsay from a witness who will not attend, a formal hearsay notice should be served in advance. Upon receipt, the other party may, within a short window, apply for the witness to attend for cross‑examination (if feasible) or serve notice of intention to challenge the hearsay maker’s credibility. Failure to comply with notice requirements does not render hearsay inadmissible, but can reduce the weight attached and affect costs. If a party serves a witness statement and then chooses not to call the witness or rely on the statement as hearsay, any other party may tender that statement as hearsay.

• Judicial control: The court may limit evidence and restrict cross‑examination to what is proportionate, focused, and in accordance with the overriding objective. Parties should be prepared to justify the relevance of proposed evidence and the time sought for questioning.

Expert Evidence

Expert witnesses provide independent opinions on technical or specialist matters. Their main duties are:

• To assist the court impartially, overriding any duty to the instructing party
• To prepare a written expert report, detailing their qualifications, opinions, and the basis for those opinions
• To attend trial for cross-examination if required

Permission is normally required before adducing expert evidence and the court may limit issues or require a single joint expert. Where each side has permission for its own expert, courts commonly direct a “without prejudice” experts’ meeting followed by a joint statement identifying areas of agreement and dispute. This sharpens the issues and can shorten trial. The court controls how expert evidence is given: traditional sequential evidence or, if ordered, concurrent evidence (“hot‑tubbing”) where experts address issues side‑by‑side under judicial moderation.

Experts must remain within their field, avoid advocacy, and disclose material facts, assumptions, and methodology. While communications with experts are generally privileged during preparation, privilege may be lost if the party deploys the material at trial.

Key Term: expert witness
A person with specialist knowledge who gives independent opinion evidence to assist the court.

Worked Example 1.1

A claimant sues a builder for defective work. Both sides instruct building experts. The court directs the experts to meet and produce a joint statement. At trial, the experts disagree on the cause of the defects.

Answer:
The experts’ joint statement will help the court identify the main issues in dispute. Both experts may be cross-examined at trial, and the judge will decide which evidence is more persuasive.

Closing Submissions

After all evidence is presented, each party’s advocate makes closing submissions. These summarize the evidence, apply the relevant law, and argue why the court should find in their client’s favour. Effective closings:

• address each pleaded issue in turn, identifying where the burden lies and whether it has been discharged
• marshal the oral and documentary evidence by pinpoint reference to the bundle
• explain any concessions or agreements in the experts’ joint statement and why the remaining disagreements should be resolved in the advocate’s favour
• set out the precise remedy sought, including figures for damages, dates for interest accrual, and any form of order required (e.g., declarations or injunctions)
• reserve any “without prejudice save as to costs” and Part 36 material to a separate, post‑judgment costs discussion, as such offers should not be disclosed before liability and quantum are determined

The judge may invite short written submissions in complex cases or where judgment is reserved.

Judgment and Orders

Structure of Judgment

The judge’s judgment will address:

• Liability: Whether the defendant is legally responsible for the alleged wrong. In some cases, liability and quantum are tried separately.
• Quantum: The amount of damages or remedy awarded, if any. Damages may include general and special damages as appropriate.
• Interest: Any interest payable on damages, as provided by statute or contract. Courts often award interest on special damages from the date of loss, and on general damages from service of proceedings or another fair date.
• Costs: Who should pay the legal costs of the proceedings. The judge may defer detailed argument to a brief consequential hearing immediately after judgment or to a later date.

Key Term: quantum
The amount of damages or compensation awarded by the court.

In addition to damages, the court can grant non‑monetary remedies such as declarations, injunctions, or specific performance where appropriate and pleaded.

Costs Orders

The general rule is that the unsuccessful party pays the successful party’s costs, but the court has discretion. The court considers:

• The conduct of the parties before and during proceedings, including compliance with pre‑action protocols and directions and engagement with ADR
• The reasonableness and proportionality of steps taken and the manner in which issues were pursued
• Any offers to settle, including Part 36 offers
• Whether a party has succeeded on all or only part of their case

Costs are assessed on either the standard basis (doubts resolved in favour of the paying party and a proportionality requirement) or the indemnity basis (no proportionality test and doubts resolved in favour of the receiving party). Following trial:

• Summary assessment is usual in fast track trials and short multi‑track hearings; advocates must bring a schedule of costs
• Detailed assessment applies where summary assessment is inappropriate (e.g., longer multi‑track trials)

Part 36 can have significant costs consequences. If a claimant equals or beats their own Part 36 offer at trial, the court must, unless unjust, impose enhanced consequences from the day after the offer’s relevant period expired, including: additional amount (percentage uplift on damages, capped), indemnity costs, and enhanced interest on damages and costs (subject to caps). If a claimant fails to beat the defendant’s Part 36 offer, the usual effect is a split costs order: the claimant recovers costs up to the end of the relevant period, but pays the defendant’s costs (with interest) thereafter to judgment, unless unjust. Judicial discretion remains, but the default approach is robust to incentivise realistic settlement.

Key Term: costs order
A court order specifying who must pay the legal costs of the proceedings and on what basis.

Worked Example 1.2

The claimant wins at trial, but the defendant had previously made a Part 36 offer to settle for more than the judgment sum. The judge must decide who pays the costs.

Answer:
The claimant may be ordered to pay the defendant’s costs from the date the Part 36 offer expired, as they failed to obtain a better result at trial. Up to expiry of the relevant period, the defendant will usually be ordered to pay the claimant’s costs. The court will only disapply this split approach if it would be unjust in all the circumstances.

Enforcement of Judgments

If the losing party does not comply with the judgment, the successful party may apply for enforcement, such as:

• Taking control of goods (writ or warrant of control), enabling seizure and sale of goods by enforcement agents. Judgments over £600 (not arising from Consumer Credit Act regulated agreements) may be enforced in the High Court by writ of control; County Court bailiffs enforce warrants of control for County Court judgments.

• Charging orders over property, creating a charge over land or certain securities. This can be followed by an order for sale in appropriate cases.

• Third party debt orders against bank accounts or debtors, directing a third party who owes money to the judgment debtor to pay the judgment creditor instead. These can be effective if timed to coincide with known credits entering an account.

• Attachment of earnings orders (for employed individuals), requiring periodic deductions from salary to satisfy the judgment. This is a County Court procedure.

Other useful steps include applications for an order to obtain information from a judgment debtor (formerly oral examination), which compels the debtor to provide sworn details of assets and income. Judgment creditors should consider the debtor’s circumstances to select the most effective method or combination of methods. The court may grant time to pay or permit instalments; if so, enforcement is generally stayed while instalments are maintained.

Key Term: enforcement
Legal procedures used to compel compliance with a court judgment or order.

Appeals

A party dissatisfied with the judgment may appeal, but must obtain permission. Appeals are allowed only if the decision was wrong in law, fact, or in the exercise of discretion, or unjust due to a serious procedural or other irregularity. Appeals are normally limited to a review of the lower court’s decision on the materials before it; fresh evidence is rarely admitted. Appeals must be filed within strict time limits, usually 21 days from the decision of the County Court or High Court. The lower court can grant permission to appeal; if refused, the application can be renewed to the appeal court. The potential outcomes on appeal are to uphold, vary, set aside, or remit the decision for reconsideration.

In appropriate cases, a stay of execution may be sought pending appeal to prevent enforcement while the appeal is pursued. Very rarely, “leapfrog” routes allow bypassing an intermediate court where statutory conditions are met, but ordinary appeal routes apply in most trials.

Key Term: appeal
A formal request for a higher court to review and change the decision of a lower court.

Worked Example 1.3

After losing at trial, the defendant believes the judge made a legal error. They wish to appeal.

Answer:
The defendant must seek permission to appeal, showing a real prospect of success or another compelling reason. The appeal court will review the lower court’s decision and may uphold, vary, or overturn it.

Key Point Checklist

This article has covered the following key knowledge points:

• Pre-trial preparation includes managing witnesses (and using witness summons where needed), completing pre-trial checklists on time, and preparing concise, paginated, and agreed trial bundles with a short case summary.
• The trial follows a set order: preliminary issues, opening speeches (if any), evidence (witnesses and experts), closing submissions, and judgment.
• Witness statements generally stand as evidence‑in‑chief; amplification needs permission and must be justified. Judges control the scope of evidence and cross‑examination to ensure proportionality.
• Hearsay is admissible but requires notice where the maker will not attend; weight is assessed by the judge, and the opponent may seek to have the maker called or challenge credibility.
• Expert evidence is controlled by the court; experts owe duties to the court, may be directed to meet and produce a joint statement, and may give evidence concurrently if ordered.
• The claimant bears the burden of proof on the balance of probabilities. Particular issues (e.g., contributory negligence) may place an evidential burden on the defendant.
• The judge’s judgment addresses liability, quantum, interest, and costs; remedies can be monetary and, where appropriate, non‑monetary.
• The general rule is that the loser pays the winner’s costs, subject to the court’s discretion. Bases of assessment include standard and indemnity; fast track trials commonly involve summary assessment.
• Part 36 offers carry significant costs consequences at and after trial; failure to beat a defendant’s offer typically results in a split costs order, and beating a claimant’s offer usually triggers indemnity costs and enhanced interest from Day 22.
• Judgments can be enforced by control of goods, charging orders (with possible sale), third party debt orders, and attachment of earnings, among other mechanisms.
• Appeals require permission, are usually a review on the papers before the trial judge, and must be brought within short time limits.

Key Terms and Concepts

• witness summons
• opening speech
• burden of proof
• balance of probabilities
• evidence-in-chief
• cross-examination
• re-examination
• expert witness
• quantum
• costs order
• enforcement
• appeal