Proving your case

At the start of a case, the parties’ lawyers draft statements of case, setting out their respective positions. They may then draft further statements of case dealing with points raised in their opponent’s statements. Typically, skeleton arguments are drafted by the parties’ lawyers shortly before trial and oral opening and closing submissions are made by each side’s lawyers during trial.

Witnesses can be required to give evidence by either party (there is no property in a witness). A witness who is unwilling to give evidence can be served with a witness summons requiring them to attend court to give oral evidence (and/or produce documents to court) – although a witness who is outside England and Wales cannot be served with a summons. Instead, a letter of request might be sought, requesting the court in the witness’s home country to take evidence to be sent to the English court.

A witness statement will be drafted ahead of trial by the party intending to use that witness. Although a lawyer might compile this, it should be written in the witness’s own words. Witnesses who do not speak (or do not speak sufficient) English will give a statement in their own language which is then translated. All witnesses have to sign a statement of truth, confirming that they believe the facts in the witness statement are true. Contempt of court proceedings can be brought against anyone making a false statement in a document verified by a statement of truth.

At trial, the witness will be questioned by the other party’s lawyer, not the judge (although the judge can ask questions if they want to).

The parties can, with the permission of the court, appoint experts to opine on certain specialist evidential issues (such as on valuation of loss / an asset or on a technical issue). Usually the parties each appoint an expert, however, the expert owes their duties to the court. Expert evidence is usually given in the form of an expert reports and the parties can cross-examine the other side’s experts at trial.

Yes, in most large commercial claims, the parties always have to disclose their “known adverse documents”, as a minimum. Key documents are also usually disclosed when the parties serve their statements of case. Later on, the court may well order further disclosure, often of those documents which are likely to support or adversely affect a party’s case. It is common to have to use technology to help with the disclosure process, given the large volume of documentation usually involved.

Unless the court orders otherwise, non-parties can see the statements of case (see How are arguments put before the court?) and judgments and orders in a case without needing permission. If they get permission, they can also see the documents attached to a statement of case (eg the contract between the parties), witness statements, expert reports and skeleton arguments. The court will weigh up the risk of harm in releasing these documents against the principle of open justice.

Usually, each side’s lawyers make oral opening submissions, witnesses are then called to be questioned, then (if any) the experts are called and then each side’s lawyers make oral closing submissions.

These materials are written and provided for general information purposes only. They are not intended and should not be used as a substitute for taking legal advice. Specific legal advice should be taken before acting on any of the topics covered.

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