7.9. The likely running order

Transcription

1 7.9. The likely running order Assuming both parties are going to give evidence, the trial is likely to proceed along the following lines: claimant opens and gives their evidence claimant s witnesses give evidence defendant cross-examines the claimant s witnesses the defendant gives their evidence the defendant s witnesses give evidence the claimant cross-examines the defendant s witnesses the defendant closes their case the claimant closes the district judge might ask questions the district judge makes a decision, giving reasons winner applies for costs loser may apply for permission to appeal. Sometimes, particularly where most of the case is in writing and the only witnesses are the parties, a quicker procedure is used as follows: the district judge explains their understanding of the case and the issues from their reading of the file the claimant gives any additional evidence the defendant gives any additional evidence each party is given the opportunity to cross-examine each other each party makes a final submission to the district judge in support of their case the district judge makes a decision and gives reasons the winner asks for costs the loser might ask for permission to appeal Evidence How do we prove our case? The standard required in a small claim is to prove your case on the balance of probabilities. The district judge will consider all the evidence and then, after weighing it all up, decide if the claimant s version is more likely than the defendant s (51%). If it is, then the claimant will win their case. 71

2 What are the rules of evidence? The strict rules of evidence that apply to the other tracks, don t apply to small claims. So, if it s not possible to produce original documents (provided you ve got a good reason) you ll be all right and the court will also allow what s called circumstantial evidence and similar fact evidence to be given. In other words, you ll be allowed to give evidence that can t be supported by other evidence, although be careful about doing this because it might cause the district judge to have doubts about your case as a whole What about witnesses? Any witnesses, including the parties bringing and defending the case, can give verbal evidence. It s unlikely to have to be given under oath. Assuming the standard directions apply to your case, the other side will already have received a written summary of your witnesses evidence. On the day, the district judge will probably allow witnesses to read out their statements. If a witness can t attend, then the district judge will take their evidence into account, however, its impact and importance is unlikely to be as great. Furthermore, their evidence can t be tested by cross-examination. Always ensure you let your witnesses know when the hearing is. The court only informs the claimant and the defendant, so unless you tell them, they won t know. Make sure your witnesses have a copy of their statement to refer to at the hearing and take some spare copies with you just to be on the safe side How to conduct your case Try to be as relaxed as you can without being informal. Hopefully, the district judge will help you to feel at ease, although some are more patient and understanding than others. Although you re not expected to dress like a lawyer, try to make the right impression by wearing plain, clean and tidy clothes. It s not essential to wear a collar and tie The opening speech There s a very good chance this will be given by the district judge. However, if you re the claimant, you might just get called upon to do this. 72

3 If you are, cover the following: introduce all the parties summarise the facts summarise the issues Evidence in chief This is where you give your evidence and obtain evidence from your own witnesses. You can do this by reading out your witness statement, or by simply telling the court about the events and reasons for you being in court. Likewise, your witnesses can do the same. Sometimes the district judge might interrupt in order to ask questions. The following is a checklist to run through when giving your evidence in chief to ensure you cover everything and put your case over as well as you can: remember it s not a formal trial, so don t try to impersonate Rumpole! keep your questions short keep your language simple and don t over elaborate make sure both the district judge and your witnesses can hear you don t speak too quickly - give the district judge a chance to take notes let your witnesses tell their story and don t continually interrupt them stop your witness if they stray off the point ask questions in a logical sequence ask specific questions save your best question until last. Although the district judge probably won t mind if you lead the witness, i.e. ask a question which suggests a particular answer (this isn t allowed in the other tracks), it s better to ask questions that the witness can answer in an open manner, e.g. what did you see when you saw the defendant s work?, rather than, it s right, isn t it, that the defendant s work was very poor?. When you re ready to question your witness, start by asking them to confirm their name, address, profession, number of years experience (if relevant) and to confirm the contents of their statement if they ve made one. Ask them to tell the court why they ve come to give evidence and their involvement in your case. 73

4 Cross examination The idea of cross examination is to cast doubts on the defendant s evidence by drawing attention to inconsistencies, weak parts and the unreliability of what they ve said in evidence. As a rule of thumb, limit any questions to those where you re fairly sure of the answer. The last thing you want is to risk being taken by surprise and having your case ruined. No t e. Don t adopt a hostile or aggressive tone, otherwise the district judge will intervene and stop you in your tracks Re-examination After cross examination, you re entitled to ask more questions of your witness. This should be limited to one or two questions, the purpose being to clarify points that may have arisen in cross examination. You re not allowed to ask anything in reexamination that wasn t raised in cross examination. See it as an opportunity to leave a positive lasting impression with the judge The closing speech Each party will get the opportunity to say how and why the case should be decided. This is your chance to really sell your case. Stress any evidence that s helped and put into context any evidence that hasn t been great. Don t forget, if you re the claimant, the onus is on you to prove your case The law Although it s a small claim, the law is still relevant. If you re relying on a case, remember to bring a transcript. Obviously, the district judge will be familiar with the particular area of law involved in the case, but don t assume they will help you. You must come prepared The decision Once all the evidence has been given and the district judge is satisfied they understand all the issues, they will make their decision. They will give their reasons and, depending on the type of case, these may be brief or detailed. The judgment will contain the result of the case and the reasons for the decision. The judge will only produce a written note of the reasons for the decision if there was no recording or if either party notified the court they couldn t attend. 74

5 No t e. The district judge makes a note of the decision and any money order on the court file and the court staff enter the judgment on the court s computer system. A formal order is then drawn up, sealed and sent to both parties Costs The basic rule - no costs The basic rule in small claims cases is that, unlike in other tracks, the winner doesn t recover their legal costs from the losing party. If you do win your case, however, you will be entitled to recover the following routine expenses: the court fees - issue fee, allocation fee, hearing fee the fixed costs shown on the claim, if a solicitor issued the claim (this isn t relevant if anyone other than a solicitor issues the claim, e.g. a lay representative), or up to 260 if it s an injunction expert fees of up to 200 expenses incurred by the party and witnesses, including the reasonable cost of staying away from home loss of earnings for the parties and witnesses (up to 50 a day). No t e. The district judge has the final say on whether costs and expenses are allowed. If the district judge decides that a party has behaved unreasonably, additional costs can be awarded and these will be assessed. No t e. Where both parties decide to use the small claims track despite the qualifying conditions not being met, the no-costs rule applies unless the parties agree otherwise. If you tot up witnesses expenses this can add up to a considerable amount to the losing side s bill. Bear this in mind when thinking about which court you d like to have the hearing in Costs awarded for unreasonable behaviour An exception to the no-costs rule in small claims is that the district judge can award them where a party has behaved unreasonably. It s something that rarely happens in practice, but the following types of behaviour could trigger an award of costs: 75