Trial Preparation — SQE1 FLK1 Dispute Resolution

Your key witness has just written back. He will not come. He was the project manager at the company you are suing, and he is the only person who can say what they knew when they signed. He does not want to be dragged into a fight between his old employer and his new one. The trial is in six weeks. Can you make him attend? Yes.

The court will compel him. But there is a deadline buried in the rule, and a payment you must make at the moment of service. Get either wrong and the summons does not bind him at all. This is Trial Preparation, the tenth topic in Dispute Resolution, and it is where cases are quietly won and lost weeks before anyone stands up. Keep your project manager in mind. He is coming back.

Here is the route. Witness summonses first, because that is your problem this morning. Then pre-trial check lists and the pre-trial review. Then the trial bundle, which is the biggest single job. Then skeleton arguments. Then the trial timetable and your estimate. And last, agreed facts, which is how you make the trial shorter than it would otherwise be.

One idea before the rules. Trial preparation does not begin in the final weeks. It begins when you take the case. Preserve the evidence, take statements that will stand up at trial, and keep a clear case theory throughout. Judges form impressions early.

Back to your project manager. Most witnesses attend voluntarily. When one will not, the tool is the witness summons under CPR 34. It is a document issued by the court requiring the person to attend and give evidence, and it specifies the time, the date and the place.

Two conditions, and this is where candidates lose the mark. The summons binds only if it is served at least seven days before the date the witness is to attend. That is CPR 34.5. And at the time of service the witness must be offered or paid travelling expenses and compensation for loss of time. That is CPR 34.7. Six weeks out you have room for both.

Seven days, and expenses at the door. Serve it late or serve it empty-handed, and it binds nobody.

What if the summons is served properly and ignored? Refusing or neglecting to attend without sufficient cause is a contempt of court, punishable by a fine or by committal to prison. In the County Court, section 55 of the County Courts Act 1984 provides expressly for a fine. But be realistic. Courts are cautious about coercing non-parties, and if the witness simply does not appear, your problem is evidential. You ask the judge to adjourn, or to admit the statement as hearsay.

Now a second use of the same tool. A summons can require production of documents without requiring anyone to attend. Say a bank holds statements you need and nobody there has anything useful to say. Do you summons a bank officer, or the documents alone? The documents alone. They are produced to the court, and the parties can inspect.

Next, the pre-trial check list, also called the listing questionnaire. Form N170. The court sends it out and fixes the date for filing it. On the fast and intermediate tracks that date must not be more than eight weeks before the trial date, or before the beginning of the trial period. That is CPR 28.4. On the multi-track, the court specifies it in the directions it gives when it fixes the trial date. That is CPR 29.6.

What does it tell the court? How long the trial will take. How many witnesses. Any special requirement, a video link or an interpreter. Whether the judge needs to be a specialist. And the dates when the people involved cannot attend. That last one matters. An interpreter has to be booked, and a trial listed in the fortnight your counsel is abroad will have to be moved.

Now the sanction, and it is worth knowing exactly. Where no party files a check list, the court will make an unless order. Unless a completed check list is filed within seven days of service of that order, the claim, the defence and any counterclaim are struck out without further order. Two firms in the middle of office moves is not an excuse.

Then the pre-trial review, the court's last look before trial. Is the case ready? Have the directions been complied with? Is the timetable realistic? Are there outstanding applications? A direction left unperformed a month before trial is exactly what the review exists to catch. And the judge's first response to a curable default is not to lose the trial date. It is to require the default cured.

The trial bundle. This is the collection of documents the judge will actually use. Statements of case, witness statements, expert reports, the key disclosed documents, correspondence, exhibits, and an index at the front. Documents run chronologically within each part. The judge relies on this bundle, so make it complete and make it navigable.

Two mechanical points that questions love. Who files it, and when? Unless the court orders otherwise it is the claimant who files the trial bundle. And it must be filed not more than seven days and not less than three days before the start of the trial. That is CPR 39.5. Note both ends of that window. File on the morning of trial and the judge cannot pre-read. File it weeks early and it goes out of date, because late documents, schedules and skeletons are still coming.

Pagination, and it is a real trap. Say your bundle runs to 500 pages in four sections, and the trainee has numbered each section separately. The witness statements run B1 to B140. The disclosed documents start again at D1. Is that right? No. Number continuously from the first page to the last. Index each document with its page number, and use numbered dividers where the bundle runs over 100 pages.

Why does it matter? Because page 312 has to mean one page, to the judge, to both counsel and to the witness in the box. And if two more statements land the week before, you insert them and repaginate before filing.

Electronic bundles are now routine, filed through the Document Upload Centre or the Courts Electronic Filing system. Searchable, easy to update, cheap to distribute. But they need work. Every page of typed text not created as an electronic document must go through optical character recognition. Without it, counsel cannot search the bundle while a witness is in the box. A legible scan is still just an image.

Skeleton arguments. A skeleton is a written outline of your case, given to the judge before the hearing. It sets out the issues, your key points on each, and the authorities you rely on. It is called a skeleton because it is the structure you build on at the hearing. It supports the advocacy. It does not replace it.

When is one required? On appeals, on most interim applications, at multi-track trials, and at any complex hearing where the judge asks for one. On the fast track and in small claims they are less common, though they may still be ordered. A one-day fast track trial on a single point of construction does not automatically need one. That makes it a choice, not an obligation.

What goes in? A brief introduction, a summary of the facts, the legal issues, your argument on each, the authorities, and a concise conclusion. Be selective. The judge does not need every argument, just the ones that matter. Page limits are set by the court guides and by directions, and they vary with the court and the hearing. Check the guide for the court you are in.

Exceed a limit and you are expected to explain in writing why the extra length was necessary. A covering letter saying the case is a complex one is the wrong instinct, not a cure. Fifty pages and twenty authorities on one issue buries the point the judge has to decide, and excessive skeletons are not read with care.

The trial timetable. It allocates time for openings, witness evidence, cross-examination, closing submissions and judgment. Build it forwards from the evidence, not backwards from the listing. A rough breakdown: thirty minutes for each opening, sixty to ninety minutes per witness including cross-examination, and thirty to sixty minutes for each closing.

Here is the pressure you will actually face. You work the timetable through honestly and it comes to two and a half days. The trial is listed for two. Your client, anxious about costs, tells you to allow twenty minutes a witness so the case fits. Two hostile former employees will not be cross-examined in twenty minutes. An estimate built backwards from the listing is not an estimate at all.

And the price of pretending otherwise is paid at trial. Evidence cut short. The case left part-heard and relisted months later, with both sides paying for the same trial twice. A costs order for the time wasted. Courts keep track of whose estimates are reliable.

Openings are your roadmap. Tell the judge what the case is about, what you must prove, how you will prove it, and what you want the court to do. Twenty to thirty minutes is typical. Do not argue the evidence, and do not read the witness statement aloud. It already stands as that witness's evidence-in-chief.

Witness order should follow the logic of the case, not anyone's convenience. Fact witnesses first, grouped by issue, then the experts. Suppose your valuer's opinion is built on the accountant's figures. Call the valuer first and his opinion rests on facts the judge has not yet heard.

Closings are argument, not narration. Take each issue in turn and marshal the evidence that bears on it. Explain why the burden is discharged, meet the other side's best points, and pin every assertion to a page in the bundle. As seen at page 45.

One thing people leave out. Reading time. A judge may absorb a slim bundle beforehand, but 1,500 pages of bank statements and expert reports is a day's work. Build it in. Ask that the first day, or the first half-day, be set aside for reading, supported by a reading list identifying the documents that matter. Reading time is court time. It is not deducted from your share.

Last heading, and it saves more time than anything else here. Not everything has to be proved. Take a negligence claim against an architect. Four things are not in dispute: the extension was built, it cost £75,000, the architect was engaged to design it, and the roof has leaked ever since. In dispute: whether the design met the standard of a reasonably competent architect, and what the repair is worth.

Write those four down in a statement of agreed facts and they drop out of the case. The trial is confined to the standard of care and the cost of repair. Shorter, cheaper, easier for the judge. The court must manage cases actively by identifying the issues early and deciding which of them need full investigation, and the parties are required to help it do so.

The same logic runs through the bundle. An agreed bundle is one both parties accept, and it is quicker to prepare because nobody is arguing about contents. Agree what you can, put the disputed documents in a separate part, and record the disagreement for the judge to rule on. And agreement pays. Documents in an agreed bundle are admissible as evidence of their contents unless the court orders otherwise or a party objects in writing.

And keep settlement under review right up to trial. Since Churchill v Merthyr Tydfil, in 2023, and the CPR amendments in October 2024, the court can order the parties to engage in alternative dispute resolution. Be ready to explain at any pre-trial review what steps have been taken. Be strategic about what you agree, though. Agree what is genuinely undisputed. Do not give away a point you might win.

A word on how SQE1 tests this. You will not be asked to recite a rule number. You get a scenario, five answers, and one instruction: pick the best. So learn what each rule does, and let the number be a label.

If you keep only three things from this episode, keep these. Seven days, the minimum notice for a witness summons to bind, with expenses offered at the time of service. Seven to three days, the window in which the claimant files the trial bundle. And the unless order: no check list from anyone, and the claim, defence and counterclaim go in seven days. The one case worth a name is Churchill v Merthyr Tydfil, where the court gained the power to order you to try alternative dispute resolution.

Five traps. One: do not miss the pre-trial review. Failure to attend can lead to your statement of case being struck out, to costs orders, or to the trial proceeding in your absence. If you cannot attend, seek an adjournment in advance. Two: do not reach for a summons lightly. Write to the witness first, explain why the evidence is needed, and offer reasonable expenses. Many cases are lost by calling hostile witnesses.

Three: bundle hygiene. Remove duplicate documents, because they bulk out the bundle and confuse the judge. Check every hyperlink in an electronic bundle, and proofread, because errors look unprofessional. Four: the estimate. Get it wrong and the judge may cut your evidence short, you may not finish your case, and you can face adverse costs orders for wasting court time.

Five: the skeleton that tries to say everything. Structure it for a busy judge. Clear headings for each issue, short paragraphs, one argument each, and cross-references to the bundle. The judge should be able to understand your case from the skeleton alone.

Quick check. A trainee in the firm acting for the claimant is preparing the trial bundle in a multi-track dispute over a distribution agreement. Disclosure produced about 1,100 documents between the parties, most of them routine delivery notes and internal emails that bear on none of the pleaded issues. The claim turns on whether the supplier was entitled to terminate without notice. Should the trainee put all the disclosed documents in the bundle?

Three candidate answers. One: yes, because every document a party has disclosed forms part of the evidence at trial. Two: no, because she should include only the documents which support her own client's case. Three: no, because the bundle should contain only the documents relevant to the issues to be tried. Pause here if you want a moment.

The answer is three. The practice direction lists what belongs in the bundle. Statements of case, any case summary or chronology, requests for further information and the responses, witness statements, expert reports and hearsay notices. And any other necessary documents. Necessary means necessary for the issues the judge has to decide.

A bundle of 1,100 documents in a claim about a right to terminate would bury the material that matters. It costs the parties money to copy and the judge time to read, and it offends proportionality in the overriding objective.

Why the others fail. One confuses disclosure with evidence. Disclosure identifies what exists and must be shown to the other side; it does not turn every document into trial evidence. Two is the more dangerous answer, because it sounds loyal. A partisan bundle is worse than an over-full one, and the claimant's legal representative prepares it for the court, not for one side.

Five things to take away. One: a witness summons compels attendance, but only if it is served at least seven days before the witness is due and expenses are offered at the time of service. Two: the pre-trial check list is how the court learns what your trial actually needs, and if nobody files one, an unless order follows with seven days to comply.

Three: the claimant files the trial bundle, not more than seven days and not less than three days before trial, paginated continuously and indexed. Four: the skeleton is an outline that supports your advocacy, not a substitute for it. Five: your estimate is a professional obligation, because the court lists on it and other cases sit behind yours.

And your project manager? Six weeks is plenty. Write to him first. Then the summons, served with at least seven days to spare, and his travelling expenses and compensation for his time offered at the door. Do that and he attends. Miss either and you are asking a judge to adjourn. Next time, Trial Procedure.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.