A guide to the

litigation process

Inside
Before the issue of proceedings
The overriding objective
Disclosure of documents
Some possible steps before trial
Expert evidence
Failure to comply
The trial
Appeals
Contents
1. Introduction 3

2. Before the issue of proceedings and the duty to preserve documents 3

3. The overriding objective 5

4. Starting proceedings 5

5. Case management by the court 5

6. Allocating cases 6

7. Summary procedures 6

8. Statements of case 7

9. Disclosure of documents 8

10. Some possible steps before trial 10

11. Witness statements 11

12. Expert evidence 11

13. Case management hearings 12

14. Failure to comply with the rules, practice directions or court orders 12

15. Early termination of an action 12

16. The trial 13

17. Appeals 13

18. Execution and enforcement 13

19. Costs 13

20. Appendix 1 - Order of proceedings at Trial 16

2
Introduction Before the issue of proceedings and the duty to
If you are involved in a dispute you need to know: preserve documents

• what options there are for resolving the dispute; We set out below some of the key issues which should be addressed
before the issue of proceedings.
• what litigation involves;
Is there an alternative to litigation?
• the steps from the start of proceedings to trial;
There are ways of resolving disputes other than through court
• what parties to proceedings have to do; proceedings. Structured alternatives are sometimes described as
alternative dispute resolution ("ADR") and include mediation, early
• the fundamentals of court procedure;
neutral evaluation ("ENE") and expert determination, as well as
• how to use legal advisers efficiently and cost effectively; and arbitration. The role of ADR has become increasingly important.
The court will expect all parties, subject to some limited exceptions,
• what happens after judgment.
to consider the use of ADR during the course of proceedings. In
The civil justice rules, which had been developed over centuries, were some cases it may be appropriate to initiate negotiations to resolve
discarded in 1999 and replaced by new rules of court procedure. a dispute before the issue of proceedings, so long as in so doing
These rules are known as the Civil Procedure Rules ("CPR"). The aim the other party does not misconstrue such an approach as a sign
of the CPR is to make civil justice more accessible, fair and efficient. of weakness. Indeed the courts expect parties to consider whether
The CPR are not just another set of rules tacked on to an existing some form of ADR would be more suitable than litigation before
way of doing things: since their inception they have demanded proceedings are commenced.
a completely new code of behaviour and attitude to dispute
Is your opponent worth anything?
resolution. In particular there is an emphasis on the need to focus on
investigating and preparing the case at an early stage of the dispute, If you are a claimant you should investigate whether the defendant
and commit management resources to the resolution of the dispute. will have any assets available to satisfy any judgment that you may
obtain. If you are a defendant faced with an impecunious claimant
In April 2013, following a review of the CPR by Lord Justice Jackson, you should consider whether to apply for security for costs (see
the Legal Aid Sentencing and Punishment of Offenders Act 2013 "Some possible steps before trial" below).
(LASPO) was enacted. This has resulted in major changes affecting
many areas including costs, delays and documentary and factual Publicity
evidence. All of these changes including all revisions made up to and Publicity considerations may be important in determining the strategy
including January 2019 have been incorporated into this note. For in proceedings. Today, as a general rule of thumb, one should
cases being heard in the High Court there are, in addition to the CPR, assume that a non-party might be able to obtain a copy of any
court guides for each of the divisions. These provide further guidance document filed at court, although it may be possible to apply for an
on procedure as well as, from time to time, Practice Notes which order restricting access.
practitioners are required to follow.
Broadly speaking, each party is entitled to have heard in open court
All cases which proceed to litigation are subject to the “overriding all the relevant issues in the case, although there are some very
objective” brought in by the CPR (see below "The overriding limited exceptions. For example, in cases involving highly confidential
objective"). matters or trade secrets, it may be possible to persuade the court to
hear the matter in private.
The CPR provide for three categories of case: the small claims track,
the fast track and the multi-track. (See "Allocating Cases" below) Confidential documents and disclosure
Most of this note is concerned with the most substantial category of It is important for you to appreciate at the outset that if you are
case, the multi-track. issuing court proceedings you may have an obligation to disclose
The note does not detail the different courts in which a claim may be to your opponent all documents relevant to the issues to be tried,
heard. We will discuss this with you if you intend to commence or even though those documents might be harmful to your case and
defend any proceedings. even though those documents might be confidential (see below
"Disclosure of documents" for a fuller explanation).
In a general note such as this, our aim is to provide an overview
rather than a detailed guide. The litigation process has many No ownership of witnesses
variables. Inevitably, points will arise which have not been covered in There is no "property" in a witness of fact. This means that there
this note. It should therefore be used as an overview and not as an is nothing to prevent your opponent approaching any potential
ultimate authority on any of the points covered. We will give advice witness of fact if they may have relevant evidence to give. That may,
on specific matters as and when they arise. depending on the circumstances of the case, involve your employees

3
and clients. Your opponent might try and do this for genuine • pay the costs on an enhanced basis (known as the indemnity
evidential reasons or for tactical reasons. If these are matters of basis).
concern for you, you must raise them with us at the outset to enable
The costs provisions of the CPR require the court to take into account
us to formulate the appropriate tactics in conjunction with you.
the conduct of the parties when making an order for costs. This
Pre-action protocols includes conduct before as well as during proceedings. One of the
Pre-action protocols explain the conduct and set out the steps the factors that the court will take into account is the extent to which the
court would normally expect parties to take before commencing parties have followed any relevant pre-action protocol or the general
proceedings for particular types of civil claims which include rule. In appropriate cases, this could mean that the court could
professional negligence, personal injury, defamation, construction deprive a successful party of some or even all of its costs.
and engineering disputes, housing disrepair, possession and Before the event insurance
mortgage arrears, debt claims and judicial review.
Many people have insurance policies that may cover the pursuit or
Even if no pre-action protocol exists, there are rules that require defence of litigation and associated costs. It may even cover the
parties in all cases to act reasonably. substantive liability for a claim. Prospective parties to litigation should
review all insurance policies that they have. If a policy may respond,
The objective of these rules is to:
early notification of a claim is critical. Otherwise the insurer may
• try to avoid the need for legal proceedings by considering decline cover.
another form of ADR to assist with settlement; and
After the event insurance
• encourage the exchange of information and documents that The insurance market has developed and is continuing to develop
are relevant to the claim from the outset so that the parties products to deal with the insurance of risks and payment of costs in
understand each other’s position. This will assist parties in litigation.
making decisions as to how to proceed, as well as support the
efficient management of any proceedings and reduce the costs Broadly speaking, in return for the payment of an appropriate
of resolving the dispute. premium a party can obtain insurance for their potential liability to
pay costs up to a certain level. This can include:
Parties to a potential dispute not covered by a pre-action protocol
should follow a reasonable procedure, suitable to their particular • that party’s own legal costs up to a specified level;
circumstances. This will normally include: • that party’s liability to pay the opponent’s costs up to a
• the claimant writing to give details of the claim, enclosing specified level.
copies of documents relied upon and asking for copies of those Changes to the law in April 2013 mean that recovery of these
key documents which the claimant believes the defendant has premiums from an opponent if you are successful is no longer
and identifying what the claimant wants from the defendant; possible in most, but not all claims.
• the defendant responding within a reasonable time - 14 days Duty to preserve documents
in a straightforward case and no more than three months in a
Once a party becomes aware of the likelihood of litigation, that party
complex one; and
is under a duty to preserve and keep all documents that may be
• complying with the other party’s reasonable requests for relevant to the issues. This includes the suspension of any relevant
further information. document destruction process. Indeed, you will probably be required
to explain when you gave instructions to preserve documents.
These rules should not be used as a tactical device to obtain an unfair
This obligation extends to electronic documentation. A failure to
advantage over the issues. If these initial steps do not produce a
preserve documents at the outset, or to give proper disclosure once
settlement then the parties should review their position and at least
litigation is commenced, can result in judicial criticism, financial
seek to narrow the issues.
penalties or adverse inferences which may be very harmful to the
If the court considers that a party has not complied with a relevant case. The process known as disclosure is covered in more detail under
pre-action protocol (or the general rule where there is no relevant "Disclosure of documents" below.
pre-action protocol) and this has led to unnecessary commencement
Statements of truth
of proceedings or costs, it can order the party in default to:
It is a requirement of the CPR that parties (or, in certain
• stay the proceedings until the steps which have to be taken circumstances, their legal representatives) should sign statements
have been taken; of truth in relation to all manner of steps in the proceedings. This is
• pay the costs of the proceedings or part of the other party’s a statement that the party putting forward the document believes
costs; and the facts stated in the document are true. For example, whenever

4
a party to proceedings puts forward a formal statement of case, an Starting proceedings
application notice in certain circumstances or a witness statement
Time limits for service
that party must sign a statement of truth verifying that they believe
the contents of the documents to be true. If it should subsequently Once issued (i.e. lodged at the court office with the fee paid), a
transpire that a person signed a statement of truth without an honest claim form is only valid for 4 calendar months (6 months if being
belief in the truth of its contents, that person may be found guilty of served out of the jurisdiction of the court that is England and Wales).
contempt of court and could ultimately be imprisoned. In practice this means that the claimant must despatch the claim
form if serving it within the jurisdiction before 12:00 Midnight on
In the case of a corporate party, a person who holds a "senior the calendar day 4 months after the date of issue of the claim form
position" in the company or corporation must sign the statement otherwise it will lapse.
of truth. The definition of those in a "senior position" includes
management staff. There are certain circumstances in which the validity of a claim form
may be extended, but an application to the court is required and
The overriding objective this should be made prospectively, before the claim form expires. If
there are any specific concerns about, for example, limitation periods,
Cases that proceed to litigation are subject to the overriding then it is absolutely imperative that the claim form is served in time.
objective. proceedings are only properly instituted once they are despatched.
It is the duty of the parties to help the court to further the overriding Where a claim form is to be served out of the jurisdiction, different
objective. The overriding objective is applied to enable the court to rules apply but the claim form must be served within a 6 month
deal with cases justly and at proportionate cost. period.

This specifically includes, so far as practicable: Acknowledging service

Once the particulars of claim are served on a defendant (this may
• ensuring the parties are on equal footing;
be simultaneous with the claim form or it can be done separately),
• saving expense; the defendant must within 14 days either file an acknowledgement
of service form or file a defence. If the defendant is located outside
• dealing with the case in ways which are proportionate:
of the jurisdiction then a different period may apply. Once the
−− to the amount of money involved; defendant lodges an acknowledgment of service form, he must serve
the defence within a further 14 days. If a defendant does not comply
−− to the importance of the case;
with these time limits, the claimant may apply for judgment in
−− to the complexity of the issues; and default without a hearing. In the case of a claim for a specified sum,
−− to the financial position of each party;
this can be for the amount claimed in the claim form. If judgment in
default is for an unspecified sum (e.g. damages for libel), the amount
• ensuring that a case is dealt with expeditiously and fairly; of the damages will have to be determined by a judge.
• allotting to a case an appropriate share of the court’s resources,
while taking into account the need to allot resources to other Case management by the court
cases; and The court has an express duty to manage cases. This includes, for
• enforcing compliance with rules, practice directions and orders. example:
• encouraging co-operation and settlement between the parties
The court will at all times consider whether the parties are acting (including the use of ADR if appropriate);
reasonably in connection with the dispute, both before and after the
issue of proceedings. • identifying the issues in the case and deciding the order in
which these issues should be dealt with;
A party who conducts litigation other than in accordance with the
overriding objective risks severe costs penalties. • deciding on timetables and directions to ensure the efficient
handling of the cases;
Further discussion of proportionality is dealt with below
under"Costs". • making appropriate use of information technology;
• where possible minimising court attendance by the parties and
dealing with as many aspects of the case as is possible on the
same occasion; and
• undertaking a cost benefit analysis in relation to each proposed
step in the case.

5
The court can take any step or make an appropriate order for are intended to have the effect of streamlining lawyer involvement
the purpose of managing the case and furthering the overriding and/or assisting the parties where possible to do much of the
objective. The court can exercise its authority on its own initiative and work without assistance from lawyers at all.
it does not have to wait for either party to take a particular step.
The multi-track
Before the CPR came into effect, it used to be the case, by and large, This is the standard track for all other cases. When allocating
that the pace and conduct of the litigation was under the control of a case to this track the court may either give directions about
one or the other or both of the parties to the litigation. That is no how the case is to be managed and specify a timetable or fix
longer the case. Once commenced, litigation is under the control a case management conference and give directions about the
of the court. The CPR encourages parties to act more reasonably management of the case. At the case management conference
and agree between themselves procedural stages, but this is subject the court will also set the trial date or specify the period within
to the court’s much tighter overall control over the proceedings. To which the trial is to take place (see later).
avoid the court imposing its control, the litigation should be pursued Factors the court will take into account in allocating a case to a
diligently. particular track include:
• the value of the claim;
Allocating cases
• the nature of the legal remedy asked for;
There are three categories of cases, or "tracks"
• the complexity of the case;
1. the small claims track
• the number of parties;
2. the fast track
• the value and strength of any counterclaim;
3. the multi-track
• the amount of oral evidence that may be needed;
The rules in the CPR which apply will vary depending on which
track the case is allocated to, with increasing levels of formality and • the importance of the case; and
process required the more complex and valuable the case. There are
• the views of the parties.
proposals for a fourth track which would be called the "intermediate
track" for those claims up to £100,000 but these are not yet Claims with no monetary value will be allocated to the track which
implemented. the procedural judge considers most suitable to enable cases to be
dealt with justly, taking into account the factors listed above.
The small claims track
This is the normal track for most claims up to £10,000 which will Shorter and flexible trials schemes
be heard in the County Court. It will also cover certain low value The courts have also introduced schemes to allow for shorter or
personal injury cases and claims of £1,000 or under by tenants of flexible trials for business related litigation at a reasonable and
residential premises against their landlords over repairs to premises. proportionate cost. These are only available to claims brought in the
In small claims cases successful parties do not recover their costs from Rolls Building which deals with claims in the Commercial, Admiralty,
the loser unless there are exceptional circumstances. As a result, the Chancery, Mercantile Courts and the Technology Construction Court.
use of lawyers is discouraged. This is intended to increase access to
The shorter trials scheme allows the court to manage claims with a
justice and make for a level playing field.
docketed judge assigned to the claim with restrictions on disclosure,
The fast track witnesses and experts. The case will be heard within eight months
This is the usual track for claims between £10,000 and £25,000. It of the case management conference and the intention is that the
applies if the court considers that: judgment will follow within six weeks. The CPR sets out those claims
that are suitable for these schemes.
• the trial is likely to last no more than a day;
The flexible trials scheme allows the parties to determine the
• oral expert evidence at trial will be limited to one expert per procedural steps and encourage parties to limit disclosure and
party in relation to any specialised field; and confine oral evidence to the minimum necessary.
• the case involves no more than two different fields of expert
knowledge in total. Summary procedures
There will be fixed timetables and fixed costs (that is, limited cost The general rule
recovery even if you win) for fast track cases. The cost structures The general rule is that all cases must go to trial to be finally decided.
This is particularly so where any element of your case involves a

6
disputed issue of fact. This is because under the legal system for actively manage and control conduct of the case. If, for instance, a
England and Wales, it is considered that the only way to decide issues party consistently fails to serve its list of relevant documents despite
of fact is for the court to hear live evidence with witnesses being the extensions of time to allow them to do so, the court may order a
subject of cross-examination. However, there are some exceptions. final extension with such a sanction attached in the event of further
default. If that party then does not comply with the order, the
Some exceptions to the general rule
opponent may obtain judgment against them without need for a
The following are some examples: trial.
Summary judgment Sometimes a statement of case (or part of the case) can be struck
Either party can make this application. To succeed they need to out upon an application made by one of the parties or by the
persuade the court that the other party’s claim or defence has no real court's own initiative where no reasonable grounds for bringing or
prospect of success. If the other party wishes to resist the application, defending the claim are set out in it or where the claim or defence
they must satisfy the court that there is an issue or question is an abuse of process of the court. This is in addition to the power
genuinely in dispute that ought to be tried or that there should be mentioned above, where there has been a failure to comply with a
a trial for some other reason. Evidence is given by written witness procedural rule or court order.
statements rather than by witnesses in person. This feature means
Objectionable matters included in a statement of case (for instance
that cases involving disputed facts are unlikely to be appropriate for
insulting allegations about the other party which are not relevant to
determination summarily.
the matters in issue) can also be struck out.
There is a range of possible orders. For example, the court may give
Interim declarations
judgment for the applicant. The court may also allow the action to
continue but attach conditions such as a payment into court by either A declaration is a formal statement by a court of the legal
party. It may give judgment on or strike out a part of the matters in significance of a given set of facts. This procedure is not appropriate
dispute, leaving the remaining issues to be tried in full. where there is a dispute as to any material facts.

The key feature of summary judgment applications is that they

Statements of case
present the applicant with an opportunity to determine the case
in their favour at an early stage and at a short hearing. Even if it What is the function of a statement of case?
is unsuccessful, in some cases it may be a tactical advantage to The purpose of a statement of case is to define the legal issues
require the opponent to set their case out in detail in written witness upon which the court has to decide and set out the essential facts
statements at an early stage. supporting the party's position. The first statement of case is the
An issue arises in relation to timing and prosecution of the underlying particulars of claim; then comes the defence and subsequently others
case: until the application is heard, the further pursuit of other stages may be served. To make sure that your statement of case is correct
in the action is suspended. This means that the timetable is inevitably and effective, it is important that you provide us with all of the facts
delayed if the application fails. This may or may not be a good thing relevant to your case. We will then determine which of these facts
tactically. should be mentioned in the statement of case.

There is also a risk to consider when making such an application. If Each statement of case is concluded with a "statement of truth".
the application is unsuccessful, the applicant will probably be ordered This is standard wording by which the party on whose behalf the
to pay some of the respondent’s costs immediately, even though the document is prepared certifies that the facts in it are true. It is
applicant may ultimately be successful at trial. absolutely essential the facts contained in any statement of case are
correct in all respects. (See "Statements of truth" above in "Before
Default judgment the issue of proceedings and the duty to preserve documents".)
The court will enter judgment against a defendant who fails to serve
Amending statements of case
or file a defence within a specified time or if certain court fees are not
paid. It is possible to amend a statement of case at various stages of an
action. An amendment can usually be made without a hearing for
Interim payments permission to amend if the other party consents. If the other party
This enables a party to seek an order for payment of money on does not consent then, save in limited cases, an amendment can only
account of a claim before the full trial takes place. be made with permission of the court.

Strike-out Generally speaking, an amendment will be allowed at any time up to

The court has a general power to attach extreme sanctions when trial (and in very limited circumstances during trial) so long as it does
faced with disobedience to its orders. This includes striking out all not prejudice the other party or the trial date, and usually with the
or part of a defaulting party’s case. The powers help the court to condition that the party seeking the amendment pays all costs which
are incurred by reason of the amendment.
7
Defences Concerns had been raised over the spiralling costs, complexity
If you wish to defend a claim brought against you, it is essential to and scale of undertaking standard disclosure, especially given the
serve a formal defence on time. If you fail to do so, the claimant may prevalence and volume of electronic documents. It was felt that our
succeed not only in securing judgment against you in your absence system needed to be reformed to bring it up to date and to be able
but may also begin the process of enforcing that judgment against to maintain its position alongside rival jurisdictions. As a result, the
you and your property. system was reviewed and a new pilot scheme has been introduced.
The Disclosure Pilot Scheme (“DPS”) applies to cases in the Business
You may experience enormous pressures of time when preparing and Property Courts only (i.e. the Chancery Division, the Commercial
a defence. The courts no longer regard it as acceptable practice to Court and the Technology and Construction Court) and will last for
serve a defence that consists wholly of bare denials and refusals two years from 1 January 2019. The DPS will not run elsewhere, so it
to admit unpalatable or damaging allegations made in a claim. If, will not apply in the Queen’s Bench Division or the County Courts.
for example, the claimant has served a very full particulars of claim
or you work for a large organisation at one location and the claim The changes are designed to usher in a change in culture around
relates to matters in another division based at another location, you disclosure. The first principle of the new scheme is about disclosure’s
may find it very difficult in the narrow time frame permitted under role in “achieving the fair resolution of civil proceedings”. The court
the CPR to put together a full defence. It is possible to agree an expects parties to cooperate with each other and assist the court in
extension of time with the other side of up to 28 days. A further determining the scope of disclosure.
extension of time may be obtained by making an application to court The notes below detail the existing scheme but we have created a
provided it is made before the time period for service expires. seperate guide to the Litigation process for those cases which are
Attacking your opponent's statement of case subjects to the DPS which you may access by clicking this link.
Sometimes a statement of case fails to include essential ingredients What documents are relevant?
of a particular claim, and failure to provide those details can be fatal The question of what documents are relevant is determined by the
to a claim. To elicit these details the party attacking a statement of statements of case. Usually all relevant documents must be disclosed,
case can ask for "further information" to be provided and, if it is not no matter how unfavourable they may be to your case. However
supplied, apply to the court for an order striking out that part of the the court does have the power to decide the nature and scope
claim (see above). Sometimes further information can be asked for so of disclosure to be given including the power to dispense with it
that the party making the request can be clearer about the case that altogether. Before any decision is made the court expects the parties
has to be met. to discuss and, where possible, agree the nature and extent of the
disclosure exercise appropriate for the claim.
Disclosure of documents
Disclosure is usually made by preparing and serving a list describing
What is disclosure? the relevant documents. The list is supported by a disclosure
Disclosure is a process by which parties to litigation disclose to each statement. Each party typically offers the opponent an opportunity to
other documents which are relevant to the matters in issue in the inspect the originals in person or to supply copies of the documents
proceedings. This is a very important part of English procedure requested by the opponent. It is usual to pay a fee for photocopies.
and should be undertaken with great care as it may determine the It is increasingly common for parties to exchange their relevant
outcome of litigation. documents by providing the materials in electronic form. The parties
should agree the precise format.
The idea is that the court is able to determine the case with all
the relevant information before it. Disclosure can also promote What are "documents?"
settlement as the parties become more aware of the relative strength A document is defined by the court rules as "anything in which
of their cases. information of any description is recorded". This includes (regardless
The current regime of how confidential they are, or whether they are originals, drafts or
copies) letters, e-mails (including those copied or forwarded), faxes
The “standard disclosure” regime was brought in with the Civil
("hard" copy and electronic), notes (however rough), diary entries,
Procedure Rules in 1999. Standard disclosure requires a party to
audio or video recordings, photographs, drawings, spreadsheets,
undertake searches for, and to disclose, documents upon which they
presentations, databases and computer files on any type of storage
rely or which are adverse to its case or another party’s case.
media e.g. PDAs, mobile phones, voicemail facilities and printer
Whilst changes have been made in the intervening period, with the histories. The definition of "document" extends to metadata (which
result that “standard disclosure” is now one of a menu of disclosure is the additional information stored and associated with electronic
options, it remains in effect the default option and other options are documents), "deleted" documents and those stored on back up
seldom utilised if at all. tapes and servers. This list is not exhaustive. You, as the client, will be

8
most familiar with your documentary systems and you will be asked • a description of where and with whom those documents are or
to examine them with a view to identifying all relevant documents. may be located;
Duty to preserve documents • in the case of electronic documents, a description of how the
Once the litigation has commenced or indeed once a party becomes documents are stored;
aware of the likelihood of litigation, that party is under a duty to • an estimate of the range of costs that could be involved in
preserve and keep from destruction all documents which may giving standard disclosure, including the cost of searching for
become disclosable in that action. This includes electronic documents and disclosing electronic documents; and
which must not be deleted from systems. A failure to preserve
documents at the outset, or give proper disclosure once litigation • a statement of the extent and nature of the disclosure order it
has commenced can result in judicial criticism, financial penalties or believes ought to be given.
adverse inferences which are harmful to the case. The report will help the court decide what disclosure order to make
What documents must be disclosed? and will enable the parties to discuss the nature and extent of
disclosure.
The court has the power to decide the nature and extent of any
disclosure to be given by the parties. In addition the parties can put Soon after proceedings have been issued, the parties are expected
forward their proposals as to what documents should be disclosed to discuss any issues which arise regarding any searches that will be
and how the disclosure should take place. When making its decision needed to be carried out in order to comply with their disclosure
the court will consider the "overriding objective", taking into account obligations and the preservation of all electronic documents. As a
the considerations of expense, speed and proportionality. One of the result, consideration as to how to fulfil the disclosure obligations
options for the court is to order "standard disclosure". This is limited has to be given at the outset and we will discuss with you the most
to the following categories: proportionate ways in which you should seek to give disclosure in
respect of your case. This may also involve the completion by you,
• the documents on which you rely;
with our assistance, of an electronic documents questionnaire. In
• the documents which adversely affect your own case; order to do this, we will need to understand your electronic system
and the working practices of those involved in the facts giving rise
• the documents which adversely affect another party’s case; and
to the proceedings. We will also discuss with you the extent of any
• the documents which support another party’s case. search and ask you to provide an indication of the quantity and
location of relevant documents, as this will enable us to provide you
Standard disclosure is no longer ordered as a matter of course and
with an estimate of the likely time and expense that may be involved
judges increasingly expect the parties to consider alternative forms
in carrying out the search and disclosing the relevant documents.
of order that might save costs and/or be more appropriate. The
court can simply order that each party disclose the documents they We will also advise you on the use of technology to assist in the
rely on and provide details of the specific documents it requires its review of electronic documents.
opponent(s) to disclose. Alternatively the court can direct disclosure
At the end of the list of documents a representative of the party will
be given on an issue-by-issue basis or that it is given in stages.
need to sign a disclosure statement, confirming that a reasonable
A party need only give disclosure of documents which are or have search has been carried out for all relevant documents.
been in that party's control, which means:
What is a disclosure statement?
• it is or was in their physical possession; A disclosure statement is a statement made by a party to the
• they have or have had a right to possession of it; or litigation in relation to the disclosure given by that party. It must
include details of:
• they have or had a right to inspect or take copies of it.
• the extent of the search that has been made to locate the
In addition, when giving standard disclosure, a party is only documents;
required to disclose those documents which have been found by a
"reasonable search". • a certificate stating that the party signing understands the duty
to disclose the documents;
Disclosure report
• a certificate stating that to the best of the party’s knowledge
In a multi-track case a party will usually be required to serve a
they have carried out that duty;
disclosure report that must contain:
• where the category or class of documents have not been
• a description of the relevant documents which exist or may
searched for on the grounds that it would be unreasonable to
exist;
do so, this must be stated in the disclosure statement.

9
To ensure that the relevant person is in an appropriate position to Points to watch
sign a disclosure statement it is essential that a complete record be • Carefully preserve all documents that are likely to be relevant
kept of the steps that have been taken to search for the categories to the case.
of documents set out above. This will include details from the
individuals in the organisation who conducted the search, recording • Identify all sources of data.
the steps that have been taken to locate the documents. • Appreciate that documents of a confidential or sensitive nature
Is there anything that need not be disclosed? may still have to be disclosed.

The answer is that, generally speaking, everything, which fits in the The obligation to disclose extends to copies of originals with
categories listed above, must be disclosed, but some documentation comments or annotations on them. You will appreciate that an
may be "privileged". If so, this means that although those inappropriate comment made on a document may have very serious
documents must still be listed, they need not be shown to your consequences for your case, if the addition is relevant to the issues in
opponent. the case. Accordingly, you should be careful not to mark or annotate
relevant documents (including copies).
The broad grounds of privilege are: legal advice privilege, litigation
privilege, privilege from self-incrimination, privilege related to Do not create new documents referring to the case (other than
"without prejudice" documents and public interest immunity (Crown communications with your lawyer) without speaking to your lawyers
privilege). We will explain these concepts to you in more detail in first. The duty to disclose documents continues throughout the
the context of your case. Please note that as a general rule there is proceedings.
no entitlement to withhold disclosure merely because the relevant
Our duty to the court
documents are regarded as "sensitive" or "confidential".
The duty of giving proper disclosure is not only that of the party to
Confidentiality in disclosed documents the litigation but also a personal one imposed on the solicitor to
Confidentiality is preserved by an express rule in the CPR which the party. This is because a solicitor is an officer of the court and he
provides that no ancillary or collateral use will be made of any or she will be in breach of his duty to the court if he or she fails to
disclosed documents without the consent of the party who gave supervise the process effectively. In extreme cases he or she will also
disclosure of the document unless and until they are: be guilty of professional misconduct.

• read out in court; or

Some possible steps before Trial
• referred to in a public hearing; or
The following are examples of steps a party may take before trial.
• the court gives permission.
Further information - Applications
This is intended to protect a party by seeking to ensure that the If dissatisfied with any of his opponent's statements of case a party
opponent cannot make collateral use of documents disclosed to can apply to the court for an order requiring further information to
them. be supplied.
In some cases where the confidentiality of the documents goes to Further disclosure applications
the root of the case the court may order that evidence is not given in
Similarly, if a party suspects that his opponent has not disclosed all
open court, thereby protecting the confidentiality.
relevant documents, he may apply for an order requiring further
When does the process of disclosure begin? and better disclosure of existing documents or that a more extensive
The parties exchange lists of documents soon after the last exchange search for documents be carried out.
of statements of case. These identify all relevant documents, and Applications for interim injunctions
where appropriate distinguish between documents which a party is
Interim injunctions are court orders given before the trial of an action.
obliged to produce for inspection and documents which a party is
They do not determine the issues in the action, but they require a
not (because privilege is claimed for example).
party to the action to do, or refrain from doing, something in order
Continuing obligation to preserve a position until trial.
There is a continuing obligation on parties to litigation to disclose, Applications for injunctions can be made at any stage of the
usually by way of supplemental lists, any relevant documents which proceedings and in urgent cases are made even before the
later come to their attention during the course of proceedings. As a proceedings are commenced. The law and rules governing
result, you should think carefully before creating any new relevant injunctions are complex and we will discuss these with you if they are
documents or annotating any existing documents since these may relevant to the claim.
become disclosable in due course, once proceedings are underway.

10
Security for costs the offer all the way up to and including trial. Those costs may
An application for security for costs can be a powerful weapon in be significant, particularly if the offer was made at an early
the hands of the party making the application. The purpose is to stage in the process.
protect a party for the costs it incurs in defending itself by requiring • If a claimant is awarded the same or more than that which
the opponent to pay money into court prospectively, in an amount the claimant stated in its own Part 36 offer that it would be
referable to the level of an adverse costs order if would face if it lost. prepared to accept, usually the claimant will be entitled to
An application for security for costs is usually made by a defendant enhanced damages and costs as follows:
against a claimant, but it can also be made by a claimant against a −− An additional award of damages up to 10% where damages
counter-claiming defendant. It involves the defending party saying are awarded up to £500,000 and 5% of damages awarded
to the court that the other party's claim should be "stayed" (i.e. up to £1million making an additional award of up to
indefinitely postponed) until that other party provides security for £75,000.
the defending party's costs. It may be ordered against a claimant
company which is insolvent. It is also regularly ordered against foreign −− Interest at up to 10% above base on the judgment sum
claimants who are not EU nationals (separate rules apply to litigation from 21 days on which the offer was made;
involving parties who are nationals of EU member states). −− Its costs on the indemnity basis from 21 days after the offer
The amount of the security depends on the likely level of costs at risk. was made (see below under "Costs" regarding indemnity
In certain circumstances a "maintainer" of an action (i.e. a person costs); and
who funds an action) can be ordered to pay the costs of an action, −− Interest on those costs at up to 10% above the base rate.
even if they are not a party themselves.
• If a claimant wins and the amount awarded exceeds the
Part 36 Offers amount that a defendant offered, then the defendant’s offer is
The Part 36 procedure is open to both defendants and claimants of no effect and is disregarded.
and can protect their position as to costs and put pressure on the
Clearly a party faced with a Part 36 offer should consider very
opposition to settle early on in the dispute and certainly before trial.
seriously whether or not to accept it. Any party who feels that the
It involves making an offer, in prescribed terms, which the person
outcome on quantum is uncertain should always consider making a
making the offer is willing to pay or receive in settlement of the
Part 36 offer at an early stage of an action so as to concentrate the
claim. The offer should be pitched by reference to the merits in the
other party’s mind.
action. The existence of the offer is kept secret from the trial Judge. It
is revealed after the case is concluded and once questions of liability Additionally, it is important to constantly review Part 36 offers as the
and damages have been decided. case progresses as evidence may come to light that may change a
party’s view of the offer made. Sometimes it may be appropriate to
There are numerous points to consider when deciding whether to
make fresh offers or withdraw past offers as your assessment of the
make an offer which we will discuss with you.
case improves.
If the offer is accepted within 21 days, then that acceptance brings
Alternatives to "Part 36" offers
the action to an end without the need for a trial. The claimant is
also automatically entitled to their costs of the action to be assessed There are situations where a defendant may wish to protect himself
on the standard basis (see below under "Costs") up to the date as to costs in circumstances where the rules relating to Part 36 offers
of acceptance of the offer. If the offer is not accepted, the case are not appropriate. A common example is a case where a perpetual
continues. injunction is sought ordering the defendant not to do certain
specified acts. In addition, a defendant may consider that the Part 36
When judgment is pronounced there are various possible scenarios: requirement to pay the claimant’s costs up to the date of acceptance
• If a claimant is successful but awarded less than the amount of the offer to be a prohibitive feature.
offered by a defendant in its Part 36 offer, the defendant will Claimants and defendants in these circumstances can make a formal
usually only have to pay the claimant’s costs up to 21 days after offer by way of a letter which is described as "without prejudice save
the defendant’s Part 36 offer was made. After that point the as to costs". Again, the court does not see the letter until it comes to
burden for costs is shifted by the offer: the defendant will be decide the question of costs. The court is obliged to take these offers
entitled to its costs from that time and interest on those costs into account at the conclusion of a case when deciding costs. The
even though it lost the case. This means that a claimant who key difference is that they do not carry with them the enhancements
wins but fails to beat a well-pitched offer will usually end up described above which follow a successfully pitched Part 36 offer. The
paying both its own and the defendant’s costs from soon after benefits enjoyed are at the discretion of the judge and so you may or
may not get the same benefits from a costs recovery perspective.

11
Witness statements In certain circumstances the court may not allow the parties to call
their own experts and will instead appoint a single expert as the court
The court will ordinarily order the parties to exchange witness
expert paid for jointly by the parties. Where the parties cannot agree
statements for all witnesses of fact who are to attend trial. The
who should be the court’s expert, the court may select one.
function of the witness statement is to set out in writing the evidence
of the maker of the statement which is relied on by the party calling At the end of the expert’s report there must be a statement by the
that witness. The court may order that witness statements be limited expert, confirming that he understands the extent and nature of
by length or subjects it will cover. The statements must not contain his duty to the court and that he has complied with that duty. The
any inadmissible or irrelevant material and must contain the truth on expert’s report must also disclose the substance of all instructions,
the issues covered and will require the maker to sign a statement of both written and oral, on the basis of which the report was written.
truth. It is improper to serve a witness statement that is known to be The court may go further and order that the instructions themselves
false or which the maker does not in all respects actually believe to should be disclosed, but only if there are reasonable grounds to
be true. consider that the statement given in the expert’s reports concerning
the substance of his instructions are inaccurate or incomplete.
Normally a witness statement will simply be read by the judge as
part of their preparation for the trial process. Ultimately however, the The court will also encourage, by order if necessary, without prejudice
court has discretion and may require all evidence to be given live in discussions between experts with a view to promoting an agreement
court, particularly in cases where the facts are very contentious and and narrowing of the issues for trial.
may be determinative of the issues.
The court has the power to order that the expert evidence be given
Great care must be taken in the preparation of witness statements concurrently, with both experts sitting in court in tandem. This is
to ensure that they cover all the salient points which the party calling known as "hot tubbing". This may cause the judge’s role to be
that witness needs that witness to prove for their case: the judge may increasingly "inquisitorial" (akin to their contemporaries in civil
refuse permission to ask supplementary questions taking into account jurisdictions) since they may ask increasingly direct questions of each
any limitations imposed by the court. expert whilst trying to form their own view based on what is said.

A witness who is called to give evidence at trial will usually be cross-

Case management hearings
examined on his or her witness statement so its content needs to be
both accurate and complete. These are hearings designed to set a framework and timetable for
the preparation of the case for trial and is when the court sets the
Expert evidence trial date. A case management conference deals with the case as a
whole, but other applications for specific directions may be necessary
Sometimes it is necessary to call expert evidence in order to prove a
as the case progresses.
claim or disprove another party’s claim. Generally speaking, expert
evidence is opinion evidence, i.e. the expert expresses an opinion Ideally a full timetable will be set out at the first case management
based on certain assumed facts. Where the facts are in dispute the hearing. The first case management conference will also deal with
expert may be asked to give alternative opinions based on difference disclosure (see above under "Disclosure of documents") and costs
sets of hypothetical facts. budgets (see below under "Costs") that have been prepared by the
parties. This is a substantial hearing in the early stages of the case
It is the overriding duty of an expert to help the court on the matters
during which the court and the parties examine the issues set out
within his expertise, rather than to act as an advocate for the party
in the statements of case, review the future conduct of the case
who instructs them. Accordingly, the court rules specifically provide
thoroughly, and decide how best to manage the case as a whole.
that this duty overrides any obligation to the party instructing the
The court will expect the parties to provide information on existing
expert or paying the expert. Expert evidence presented to the court
and projected costs to ensure the case is set up to run proportionately
should be, and should be seen to be, an independent product.
in terms of expense to the value of the claim. It is strongly advisable
No party may call an expert without the court’s permission. At the
that you attend this hearing and the court has the power to order
case management conference or in response to an application to
you attend. In some cases it will also be advisable to have experts
the court by a party the court will decide whether or not an expert
present to explain the scope of their likely evidence.
is appropriate. The court will restrict expert evidence and will only
allow expert evidence that is reasonably required to resolve the In a number of limited actions which are procedurally straightforward
proceedings. The substance of the expert’s evidence will be given to and where directions can be agreed between the parties it may be
the other side well before trial. This ensures that by the time of the possible to avoid the need for a case management conference.
trial each party is fully aware of the nature and extent of the expert
evidence to be given by the other side.

12
Failure to comply with the rules, practice directions or Once judgment has been given (which will usually be two or three
court orders months after the trial itself) a party may apply for a stay of execution
of the judgment, preventing enforcement of any award of damages.
Judges take a tough line with parties who fail to comply with a rule, The judge may agree to a stay or alternatively may refuse it.
practice direction or court order. Non-compliance with time limits
or other orders may result in draconian sanctions which can include Note that even if a request to appeal the judgment is allowed, there
significant costs penalties, the striking out of a statement of case or is no automatic stay. So if the judge has refused a stay of execution,
a defaulting party being ordered to make a payment into court as a the party concerned may wish to make an application for a stay
condition for the case proceeding. urgently to the Court of Appeal. There are numerous considerations
involved in the question of whether the trial judge or the Court of
A party in default can ask the court to lift the sanction for the Appeal will grant a stay pending the appeal hearing. If appropriate
default and the court has a limited discretion whether or not to we will discuss these matters with you.
do so. In deciding whether to do so the court will consider all the
circumstances of the case, to enable the court to deal justly with the
Appeals
application which includes the need for litigation to be conducted
efficiently and at proportionate cost as well as enforcing compliance The appeal system applies to all appeals, from an appeal of a case
with rules, practice directions and orders. It is thought that the court management decision to an order made at trial.
will be less likely to grant relief from sanctions with the imposition of Interim appeals
these requirements.
An appeal from a judge's decision on an interim matter (e.g. the
grant or refusal of an application such as an injunction) can be
Early termination of an action
made to the Court of Appeal on a point of law or on an exercise of
Settlement possible at any time discretion at any time before trial. However, appeals on exercise of
At any time during the action the parties can settle and withdraw an discretion are rarely successful.
action on such terms as they agree between themselves. However, The decisions of High Court Masters (less senior Judges who decide
if the court has not been informed of this and any court fixture is most interim matters) are appealable to a High Court Judge. Notice
wasted, the parties or their representatives can be subject to censure of appeal must be lodged within 21 days after the date of the
by the court. decision of the lower court so a decision as to whether to appeal
Pre-trial determination - other ways must be made at the earliest opportunity. The lower court may
specify a period that is shorter or longer than the standard 21 days.
In the absence of a settlement agreement between the parties an
action may be brought to an end before a full trial in the following Permission to appeal
ways: Generally speaking, permission of the court is required for appeals to
• summary judgment; proceed. This will only be granted where the appeal appears to have
a real prospect of success or where there is some other compelling
• by withdrawal of the defence resulting in judgment for the reason why the appeal should be heard.
claimant;
Grounds for allowing appeals
• by discontinuance or withdrawal by the claimant, generally on
Once permission is granted, the appeal court will allow an appeal
payment of the defendant's costs;
where the decision of the lower court was wrong or unjust because
• by dismissal of an action upon an application to strike out made of a serious procedural or other irregularity in the proceedings in
by another party; or the lower court. Save for limited exceptions, appeals are limited to
a review of the decision reached by the lower court: they do not
• by the court striking out a claim on its own initiative.
include a re-hearing or review of the evidence.

The trial Second appeals

This is the crux of the action, assuming it has got this far. Each party A second appeal is only allowed in special circumstances. No second
presents their case to the judge. The judge considers the evidence appeal may be made to the Court of Appeal from a County or High
which is tested by cross-examination of the witnesses of fact and the Court unless the Court of Appeal considers that:
experts. It is crucial that all material facts are investigated and raised • the appeal would have a real prospect of success and it would
because, save for a few exceptions; the findings of fact that are made raise an important point of principle or practice; or
at the trial are final. Appendix 1 sets out the order of proceedings at
trial.

13
• there is some other compelling reason for the Court of Appeal to order to make on costs. The conduct of the parties can include the
hear it. following:
This is a very high test. • conduct before as well as during the proceedings and the
extent to which the parties may have followed any relevant
From the Court of Appeal an appeal lies to the Supreme Court but
pre-action protocol;
only with the permission of the Court of Appeal or the Supreme
Court. • whether it was reasonable for a party to raise, pursue or fight a
particular allegation or issue;
Execution and enforcement • the way in which a party has pursued or defended his case or
Some methods of enforcement particular allegation or issue;
Methods of execution and enforcement of judgments are varied • whether a winning party has exaggerated his claim; and
and it is not appropriate in this general note to go into them. The
• Settlement offers including Part 36 offers.
following is a list of the categories of execution:
Costs budgets
• enforcement by taking control of goods by Writ or Warrant of
Control (sending a court officer to seize goods); In April 2013 the courts introduced costs budgets. These rules were
updated in April 2016 and are applicable to all multi-track cases in
• a Charging Order on land or securities followed by an Order for all courts except where the amount of money claimed is £10 million
Sale; or more or where the claims is non-monetary claim which is either
• a Charging Order over the judgment debtor’s interest in not quantified or not fully quantified but the claim is valued at £10
partnership property followed by an Order for Sale; million or more. Even in these cases the courts have a discretion to
order costs budgets. There are other limited exceptions.
• appointment of a Receiver by way of equitable execution;
Parties are required to prepare a detailed costs budget to be agreed
• Third Party Debt Orders (such as funds held by a bank);
with their opponent or subject to a case management order of
• attachment of earnings (proportion of earnings is deducted by the court. Following discussions between the parties, if the parties
employer); and are unable to agree their budgets then a budget discussion report
detailing whether the budget is agreed and those areas not agreed
• enforcement by way of Bankruptcy or Liquidation proceedings.
will have to be prepared for the court.
The above methods are relevant for enforcing judgments in England
The process requires the lawyers to prepare a budget based on
and Wales.
discrete phases of the claim (e.g. disclosure, witnesses) and to provide
Contempt of court a budget for solicitors’ and barrister’s’ time for each of these phases
In addition, if a party has been found guilty of contempt of court, as well as detailed disbursements. This is a major change in that
there are other measures available against that party which strictly parties are being expected to project manage cases prospectively,
speaking are not methods of execution but methods of punishing rather than looking back at how costs have been spent after the
that party for contempt of court. Examples are Writs of Sequestration event. Contingencies will also have to be budgeted for and the
(the court confiscating the assets of the party in contempt) and court’s approval will be required for changes. The court will be keen
committal to prison. to ensure that budgets are prepared which are proportionate to the
claim and adhered to by both parties.
Costs Compliance with budgets will be essential for recovery of costs
General principles from an opponent - if costs exceed the budget previously given for
a particular phase, it will be necessary either to get agreement to
Costs are always in the discretion of the court save in certain
the increase from your opponent or a variation order from the court
circumstances when they follow automatically e.g. a claimant
before they are incurred. The costs rules provide that if the amount a
discontinuing an action.
party is seeking to recover at the end of the proceedings in respect of
While the general rule is that the loser pays the winner's costs, this is costs on a standard basis (see below) the court will have regard to the
not always the case. Sometimes a judge may make a contrary order, budget and will only depart from the budget if there is a good reason
or may make different orders relating to different issues or stages in to do so.
the case.
The bases of costs
In particular the courts must have regard to all the circumstances of When deciding the amount payable by a party towards its
the case - including the conduct of the parties - when deciding what opponent’s costs, unless a sum is fixed in the court’s order, the court

14
will be required to determine or "assess" how much is payable. On interim applications costs may be awarded in various ways. Such
The assessment process is undertaken by reference to either the orders may mean that the party who wins at the trial may still have to
"standard" basis or the "indemnity" basis. The former is less pay some of the losing party's costs during the process. For example,
generous to the receiving party than the latter. a claimant who wins at trial but has previously issued an unsuccessful
interim application will usually win the costs of the action but will
On both bases, the court will not allow costs which have been
have had to pay to the defendant the costs of the unsuccessful
unreasonably incurred or which are unreasonable in amount.
application.
On the indemnity basis, doubt as to reasonableness is resolved in
Unless there is a different order made, all costs orders are payable
favour of the receiving party. There is no proportionality test.
within 14 days.
On a standard basis, doubt as to reasonableness is resolved in
Detailed assessment of costs applies to almost all costs orders
favour of the paying party and the court will also only order costs
which are proportionate. When considering whether the costs are All costs which a party to litigation is ordered to pay (except in those
proportionate the court will have regard to: cases where the costs are assessed or fixed by the court then and
there) are subject to the process known as detailed assessment of
• the amount of the costs compared to the value of the claim; costs. This is an assessment of legal costs by reference to technical
• the value of any non-monetary relief in issue; rules, limits and ceilings. In the absence of agreement by the paying
party to the itemised bill of costs submitted by the receiving party,
• the complexity of the case; the bill of costs and all the papers of the receiving party's solicitors
• any additional work generated by the conduct of the paying have to be lodged with a special officer of the court known as the
party; and Costs Judge. Due to the implementation of costs budgets the role
of detailed assessment of costs is likely to be diminished particularly
• any wider factors involved in the proceedings, such as
for future costs identified in the budget, as parties will already be
reputation or public importance.
working to a set budget. Incurred costs included in the budget will be
Wasted costs capable of scrutiny.
If a court thinks that one of the parties, or their legal representative, The process
has behaved unreasonably or improperly before or during the
For cases where costs are £75,000 or less, a provisional assessment of
proceedings it may:
costs will be undertaken which basically means it will be undertaken
• disallow all or part of that party's costs; or on paper. The Costs Judge goes through the work records, time
sheets and various working documents of the receiving party's
• order the party at fault or his legal representative to pay costs
solicitors and assesses the amount of costs that the paying party has
which they may have caused any other party to incur.
to pay. The paying party's solicitors are entitled to be heard during
If as a result of the lack of preparation or instructions it becomes this process. The extent to which the paying party's solicitors are
necessary to adjourn a particular hearing or case management allowed access to the receiving party's solicitors’ papers is a matter
conference, there is a risk that the court will make a wasted costs for the discretion of the Costs Judge (privilege is still respected).
order against the party considered to be in default.
Costs recovery - unlikely to be full
Interim costs orders - "Pay as you go" Because of technical limits and ceilings that are applied in the
One of the principles of the CPR is that parties to the litigation should assessment of costs during this process, and due to the possible
be aware of the costs of the litigation as the case progresses and, application of the proportionality principle in cases in which standard
where appropriate, should pay or should receive costs according to costs are awarded, it is rare that a successful party to the litigation
the perceived reasonableness of the steps taken during the course of will recover all their costs from the losing party, even assuming the
the litigation. losing party is in a position to pay them. There are many variables
which could apply:
At the end of most interim applications which involve the parties
appearing before the court, a judge will consider assessing on a • The court may not approve the full budget a party considers it
summary basis the costs of that application. If the judge chooses to necessary to spend;
make that assessment, and determines on the amount of the costs
• It is often necessary to incur expenditure in excess of the
(instead of ordering the assessment to be made separately by a Costs
budget figure in the interests of the case; and
Judge) the costs as assessed must be paid within 14 days.

15
• If the matter proceeds to a detailed assessment, not all costs
will be allowed on an inter partes basis, even when assessment
is on the indemnity basis.
Delay and interest
Because of delays in the assessment process, it may be many months
after the successful conclusion of a trial that the winning party
receives his costs from the losing party. However, interest on costs
is payable by the paying party on the amount that is eventually
assessed at the rate applicable to judgment debts, from the date of
judgement.

16
Appendix 1
The Trial

Claimant's Counsel makes opening speech *

Defendant's Counsel makes opening speech *

Judge's reading time

Claimant's Counsel calls witnesses of fact and expert witnesses - each witness gives evidence in chief, and are cross examined by Defendant
Counsel

Claimant's Counsel may re-examine witnesses

Defendant's Counsel calls witnesses of fact and expert witnesses - each witness gives evidence in chief and is cross-examined by Claimant
Counsel

Defendant's Counsel may re-examine the witnesses

Defendant's Counsel makes closing speech *

Claimant's Counsel makes closing speech *

Judgment

Note: The above steps may be varied by the court either by their exclusion or the order in which
they take place.

* In complex cases often written submissions can be submitted to the judge at the stage

17