Trial Procedure — SQE1 FLK1 Dispute Resolution

A marquee collapses. At trial the hirer's operations manager says he telephoned the supplier two days before the event to warn that the ground was waterlogged. The supplier's counsel cross-examines him for an hour. Invoices. Layout plans. Weather forecasts. He never asks about the phone call. Then, in closing, he invites the judge to find that the call never happened and was invented late in the day. Will the judge find that? No.

This is Trial Procedure, and almost every rule in it is a rule about fairness. What you may ask, when you may lead, what you must put to a witness, and what happens when the judge stops behaving like a judge. Keep our marquee in mind. We are coming back to it.

Here is the route. First the room: who you address how, and what to do when the judge interrupts. Then who opens, and how. Then the evidence, chief, cross-examination and re-examination, and the rules that separate them. Then closing speeches. And last, judgment, what happens when the judge reserves it, and the costs that follow.

Start with the shape of the day. The claimant opens, calls its evidence, and each witness is taken through chief, cross-examination and re-examination in turn. Then the defendant does the same. Then closing speeches, then judgment. But the order is not automatic. The right to begin follows the burden of proof.

Take a claim for £70,000 for goods sold and delivered. The defence admits the contract, the deliveries and the non-payment. The only pleaded defence is that a signed deed released the debt. The claimant could close its case without calling anybody. So who opens? The defendant, because the only live issue is one the defendant must prove.

Now the room. Get the mode of address wrong and you have told the judge something about yourself before you have said anything about the case. In the High Court, judges are My Lord or My Lady, in every division. A deputy High Court judge is addressed exactly the same way. In the County Court, a circuit judge is Your Honour, and so is a recorder.

A district judge is Judge. So, since 1 December 2022, is a master, an ICC judge and a tribunal judge, replacing the older Sir or Madam. So: a circuit judge trying your fast track case. My Lord, Your Honour, or Judge? Your Honour. My Lord in the County Court is the classic sign of an advocate who has not registered which court he is in.

Etiquette is quickly stated. Stand and bow when the judge comes in and goes out. Stand when you speak. Phone off. Then the part that actually gets tested. The judge interrupts you mid-question. Stop at once, listen, answer the concern directly, then go back to your sequence.

Openings are a map, not an argument. Twenty minutes is a typical allowance. Say what the dispute is about in two or three minutes, in neutral terms. Then what you must prove, how you will prove it, and what remedy you want. What you do not do is argue the evidence before the court has heard any.

And the skeleton argument you filed a week ago? Do not read it aloud. Open on the framework and send the judge to the paper for the detail. As set out in our skeleton at paragraph 5. That puts him in your written analysis without spending your twenty minutes getting there.

Your witness is called and goes into the box. Oath or affirmation. Under s.5(1) of the Oaths Act 1978 a person who objects to being sworn must be permitted to affirm. He gives no reason. The judge has no discretion to refuse. And s.5(4) settles the rest. An affirmation has the same force and effect as an oath.

Not weaker evidence. Equally perjury if he lies.

Then examination-in-chief, where most candidates carry the wrong picture in their heads. You do not walk the witness through his story. Under CPR 32.5(2), where a witness is called to give oral evidence, the statement served before trial stands as his evidence in chief unless the court orders otherwise. It is already in.

So what is left to do orally? Very little, and it is fenced. Under CPR 32.5(3) and (4) the witness may amplify his statement or deal with new matters. But only with the court's permission, and only where there is good reason not to confine him to the statement. Want to ask about a call the statement never mentions? Ask the judge first.

Documents are easier than they look. The email is in the agreed bundle, it was disclosed months ago, and nobody has served notice to prove it. So you need not establish that it is genuine. Take him to the page, have him identify it, ask what it says.

Now the rule that organises the whole of the evidence. In chief you may not lead. A leading question suggests its own answer. You were never given any opportunity to put your figures to the finance director, were you? That is leading, it is objectionable, and the objection will be upheld.

Leading is allowed in three places. In cross-examination, always. On introductory, formal or undisputed matters, so that nobody spends time on a witness's own name. And on your own witness, once the judge has given leave to treat him as hostile. Hostile is a high bar. Not nervous, not disappointing. Adverse to the party calling him, and not desirous of telling the truth.

So try one. Your opponent's surveyor is in the box and you begin: you never went into the roof void at all, did you? Objectionable? No. That is cross-examination, and testing his account is exactly what it is for.

Cross-examination has a narrower purpose than the films suggest. You are testing accuracy, credibility and reliability. You do that by showing inconsistency, by showing impossibility, and by exposing a reason to lie. What you are not doing is proving your own case out of the other side's witness.

And then the obligation that catches people. Put your case. State your version and ask the witness to accept it. I suggest to you that you were never at the scene, and that you are making this up. He will say no. That is fine. Your case is now before the court.

Which is where our marquee comes back. The rule in Browne v Dunn, restated by the Supreme Court in Griffiths v TUI, is this. If you intend to ask the court to reject a witness's evidence, you must ordinarily put that challenge to him in cross-examination. An hour on invoices and forecasts, and not one question about the phone call. The court will generally accept evidence that was open to challenge and left untested. Put it, or lose it.

The judge is not a spectator. Under CPR 32.1 the court controls the evidence and may limit cross-examination. Half a day recirculating three letters against a ninety-minute allocation will be stopped, and the answer to that is control, not an adjournment. The right is to a fair opportunity to challenge what matters, not to an unlimited one.

But intervention has a limit. Interrupt counsel throughout. Question the claimant yourself, at length and in hostile terms. Announce before the defence has called anybody that the claim looks like an afterthought. You have stopped being a judge. That is Serafin v Malkiewicz.

And here is the consequence that gets examined. The appeal court cannot keep the findings that look right. An unfair trial supports none of them. A full retrial, not a partial remittal. No cause is lost until the judge has found it so, and he cannot find it without a fair trial.

Re-examination next, and it is the tightest of the three. Its job is to repair the damage done in cross-examination, and nothing else. Two limits. You may deal only with matters that arose in cross. And the prohibition on leading comes back. You mentioned that you left early, can you explain why. Not: you left early because of the emergency, right. New evidence needs the court's permission.

One thing can end a trial early. The defendant may submit at the close of the claimant's case that there is no case to answer. But the judge will ordinarily put him to an election first. Make the submission only if you call no evidence at all. No keeping your witnesses in reserve.

Then closing speeches. The evidence that was given, how it discharges the burden, the law applied to it, and the remedy you want. Reference it specifically and accurately, because misquoting evidence to a judge who heard it is expensive. A closing is not your opening read out again, and not an appeal to sympathy. And a reply for the claimant is rare: only with the judge's permission, and only where the defendant raised something genuinely new.

Judgment. The judge must give reasons, orally or in writing: what was found as fact, what law was applied, and why it went the way it did. Those reasons are also how you and your client decide whether an appeal is viable.

Often judgment is reserved, which means the decision comes later, in writing. No rule fixes how long the judge may take. The working expectation is three months from the end of the trial, and in one case a delay of 22 months was called inexcusable. Your client does not come back to court. The court notifies your firm.

Then the draft, and this one is a real trap. Under PD 40E the court usually sends a draft to the legal representatives by 4 p.m. on the second working day before hand-down. It is confidential. You may tell your client the result. You may not brief investors, ready an announcement, or act on it. Breach may be treated as contempt.

Three quick ones. If the sealed order records £84,000 where the judgment plainly totalled £48,000, that is the slip rule, CPR 40.12. The court may correct an accidental slip at any time, on its own initiative if need be. Sealing is no obstacle and no appeal is needed.

And there is no rule automatically keeping factual witnesses out of a civil courtroom. Hearings are public. If your opponent's witnesses sat through the opening, that goes to the weight of their evidence, not to whether they may testify.

A litigant in person may bring a McKenzie friend to sit with her, take notes and suggest questions. But he may put the questions himself only if the court exceptionally grants him rights of audience.

Finally, costs, which we take properly next time. The general rule under CPR 44.2 is that the unsuccessful party pays the successful party's costs. But that is a starting point. CPR 44.2(4) sends the court to all the circumstances: conduct, whether a party succeeded on only part of its case, and any admissible offer to settle.

And Part 36 overrides the general rule. Fail to beat the other side's offer and you normally pay their costs from the expiry of the relevant period, with interest, even though you won at trial. Beat your own offer as claimant and you get indemnity costs, enhanced interest, and an additional amount on top.

A word on how SQE1 tests this. You will not be asked to recall a case name or a rule number. You get a scenario, five answers, and one instruction: pick the best. So learn what the rule does. The names are pegs.

If you keep only three. CPR 32.5(2): the served witness statement is the evidence in chief, which is why oral examination-in-chief is so short. Browne v Dunn, restated in Griffiths v TUI: challenge it in cross-examination, or you cannot ask the judge to reject it. And Serafin v Malkiewicz: a judge who does not remain aloof from the fray makes the trial unfair, and unfairness means the whole trial again.

Four traps. One: judgment binds the moment it is given. Filing an appellant's notice does not suspend it, and neither does an intention to appeal. Your client pays, or you obtain a stay. And the appellant's notice is 21 days.

Two: over-crossing. Every question should have a purpose, and once you have made your point, sit down. Asking too many questions muddies what you proved. Harassing the witness annoys the judge. And asking a question you do not know the answer to hands the other side a gift.

Three: if cross-examination did nothing to your witness, do not re-examine at all. I have no questions for this witness. Re-examining a witness who came through intact only walks the judge back through your opponent's best points.

Four: costs are discretionary, and know what is not on the list. A paying party's ability to afford the costs is not a factor. Conduct is. Win your contract claim in full but lose two days of a six-day trial on a dishonesty allegation built on nothing, and expect a reduced percentage of your costs.

Quick check. Your witness has been cross-examined at length about an email he sent a week after a site meeting, which on its face contradicts part of his witness statement. He gave several confused answers and left the impression that he had changed his story. You also have a photograph in the trial bundle that was never mentioned in chief and which, you now realise, helps your client on a different issue altogether. You rise to re-examine.

What may you properly deal with? Three candidate answers. One: the email only, and by non-leading questions; the photograph needs the court's permission. Two: both of them, since each bears on the reliability of his account. Three: the email, and you may lead him on it so that his explanation comes out clearly. Pause here if you want a moment.

The answer is one. Re-examination is confined to matters arising out of cross-examination, so the email is in and the photograph is not. It was never mentioned in chief and it goes to a different issue altogether, so it is new evidence. Ask the judge for permission, explain why it is relevant and why it was not raised earlier, and he may allow it.

Why the others fail. Option two turns re-examination into a second bite at your evidence in chief, which is exactly what it is not. Option three gets the email right and the questioning wrong. The prohibition on leading returns in re-examination. Let him explain it in his own words.

Five things to take away. One: My Lord or My Lady in the High Court, Your Honour for a circuit judge or a recorder, Judge for a district judge or a master. Two: the served witness statement is the evidence in chief, and going beyond it needs the court's permission.

Three: leading is barred in chief, allowed in cross-examination, and barred again in re-examination, which is limited to what cross-examination threw up. Four: judgment binds at once, reasons must be given, and a reserved judgment arrives in draft under an embargo you may share with your client and nobody else.

Five, and our marquee. The supplier's counsel had the manager in the box for an hour and never put the phone call to him. He cannot now ask the judge to find it invented. Challenge it in cross-examination, or accept it. Next time, Costs.

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.