ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Christy Conlon and Nathan Barrow, Slaughter and May
7. Trials and Hearings 7.1 Trial Proceedings
7.4 Rules That Govern Admission of Evidence The admission of evidence is governed by case law, statute and the rules of court. The underlying princi- ple of admissibility is relevance, which means that the evidence goes to the issues in dispute. If evidence is relevant, it will be admissible, unless it falls within an exclusionary rule or is excluded by the court in the exercise of its discretion. There are a number of reasons why evidence might be excluded, including that it is opinion evidence provided by a witness who is not sufficiently qualified to provide that opinion, or that it is subject to legal privilege. 7.5 Expert Testimony Expert testimony may be permitted by the court if such testimony is reasonably required to resolve issues in the proceedings. A litigant intending to rely on expert testimony must seek the court’s permission. Typically, each litigant engages their own experts, who provide opinions based on their relevant expertise. However, in some circumstances the court may order the use of a single joint expert. The overriding duty of an expert is to assist the court on matters within their expertise; this duty surpasses any duties owed to the litigant(s) that instructed the expert. The expert’s opinions are usually set out in a report, which is filed with the court and served on the other litigant. Where each litigant has engaged their own expert, the experts may be subject to cross- examination at trial. The court may appoint a person known as an “asses- sor” to assist the court with issues where the assessor possesses relevant skills and experience. 7.6 Extent to Which Hearings Are Open to the Public As stated in 1.3 Court Filings and Proceedings , the principle of “open justice” in the legal system of Eng- land and Wales requires that court filings and pro- ceedings are open to the public, subject to certain exceptions. 7.7 Level of Intervention by a Judge The level of intervention by a judge during a hearing or trial can vary, but judges typically play an active role in managing the proceedings to ensure that the hearing
Trials typically involve oral submissions and presen- tation of evidence (from both factual and expert wit- nesses). The trial begins with each litigant presenting their opening oral submissions, which are typically supplemented by written submissions that are filed with the court shortly before the commencement of trial. Following this, each litigant presents their fac- tual and expert witnesses for examination-in-chief and cross-examination. During examination-in-chief, wit- nesses usually adopt their prior written witness state- ments, and experts adopt their reports. During cross- examination, the other side has an opportunity to test and seek to undermine the evidence given in chief. Following the examination of witnesses, litigants provide closing oral submissions, which (similarly to opening oral submissions) are typically supplemented by written closing submissions. A final judgment is then delivered by the court. 7.2 Case Management Hearings Shorter hearings for applications or case management issues may involve only oral submissions, without any presentation of evidence. The court will usually order one or more case manage- ment conferences (CMCs) before trial. The first CMC will usually take place after the exchange of plead- ings. At a CMC, after hearing submissions from the litigants, the court may give directions regarding the timetable to trial, among other things. 7.3 Jury Trials in Civil Cases Jury trials are generally not available in most civil cas- es. However, there is a presumption in favour of a jury trial in cases in the County Court and the King’s Bench Division of the High Court involving fraud, malicious prosecution or false imprisonment (upon application by a party for a jury trial in such cases). Even in those categories, the court may nonetheless direct that the case be tried by a judge alone if a jury trial would be inconvenient.
290 CHAMBERS.COM
Powered by FlippingBook