So, having gone through the previous stages of litigation without resolution, you are now approaching trial. In the absence of a settlement at the courthouse doors, you will be sitting before a judge and having your case heard. There are three stages to a trial – preparation, the trial itself and then enforcement of the outcome.
Leading up to trial you will have received directions from court as to how disclosure and the trial itself will be handled. There will be deadlines here that should be kept or extended through the Civil Procedure Rules (CPR) – although it shouldn’t affect your client’s case (unless an important piece of evidence is barred because it is late) it will be brought up when discussing costs.
Counsel can be involved in a case at several different stages. Counsel’s opinion is often sought early on in a case, before formally issuing, to find out the strength of the case being brought. This usually occurs in cases funded through Conditional Fee Agreements (CFAs) backed up with insurance, since a positive opinion will help obtain insurance.
Counsel may be instructed at a preliminary hearing and then be involved in the management of the case thereafter. It may be, as in the TV shows, that Counsel receives his instructions the day before the hearing although obviously the more time the better. Sometimes instructing Counsel at the last minute is unavoidable!
Drafting a brief to Counsel is a particular skill that you may be asked to demonstrate for an assessment. It is not easy (I have had to draft a few during my training contract and it does not get easier!) but there are a few things that could assist:
Although everything you have been learning about seems to be leading up to trial, there isn’t actually anything you need to know about the trial itself. Your advocacy skills will be examined separately so that is not an issue. What you should be primarily concerned with is costs. Costs are legal costs or what you will be billing for trial. Costs orders are how you get paid, pure and simple.
There are two ways in which costs may be awarded: standard basis and indemnity basis. The basis dictates in whose favour any ambiguity is ruled – ambiguity being whether the cost in question is reasonable or not. If a cost is unreasonable, the court won’t accept it and your client will have to pay (in fact, you will probably end up writing if off as your client won’t be happy paying for a cost that is ‘unreasonable’). The factors relating to costs are all contained in the costs CPR – I suggest you print a copy of this for the exam: you will be referring to it.
As referred to above, there are special rules relating to costs where a party is funded by a CFA (relating to reasonableness of uplift fee) or legal aid. You should be aware of these. The use of CFAs is slowly being curtailed but you should know the old rules relating to costs and CFAs as cases can go on for years before reaching trial.
Enforcement is an issue that should be considered at the outset and throughout the litigation process – there is no point spending money going to court if there is no hope of enforcing the outcome. Enforcement of a money judgement is like suing for a debt: the routes are bailiffs or insolvency. Obviously if the losing party doesn’t have the money to pay your client will lose out. Unfortunately, you won’t be getting your costs either and the client is unlikely to pay in full.
There are particular issues in relation to enforcement with regards to:
[/one_third_last]Next week I will be writing about the Advocacy assessment – yes, public speaking!