| J | Trial |
| J1 |
Expedited trial |
| J1.1 |
The Commercial Court is able to provide an expedited trial in cases of
sufficient urgency and importance.
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| J1.2 |
A party seeking an expedited trial should apply to the Judge in Charge of
the Commercial List on notice to all parties at the earliest possible
opportunity. The application should normally be made after issue and
service of the claim form but before service of particulars of claim.
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| J2 |
Split trials |
| J2.1 |
It will sometimes be advantageous to try liability first. Assessment of
damages can be referred to a judge of the Technology and Construction
Court or to a Master, or the parties may choose to ask an arbitrator to
decide them. The same approach can be applied to other factual
questions.
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| J3 |
Documents for trial |
| J3.1 |
Bundles of documents for the trial must be prepared in accordance with
Appendix 10.
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| J3.2 |
The number, content and organisation of the trial bundles must be
approved by the advocates with the conduct of the trial.
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| J3.3 |
Consideration must always be given to what documents are and are not
relevant and necessary. Where the court is of the opinion that costs have
been wasted by the copying of unnecessary documents it will have no
hesitation in making a special order for costs against the person
responsible.
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| J3.4 |
The number content and organisation of the trial bundles should be
agreed in accordance with the following procedure:
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| (i) |
the claimant must submit proposals to all other parties at least 6
weeks before the date fixed for trial; and
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| (ii) |
the other parties must submit details of additions they require and
any suggestions for revision of the claimant's proposals to the
claimant at least 4 weeks before the date fixed for trial.
This information must be supplied in a form that will be most
convenient for the recipient to understand and respond to. The form to
be used should be discussed between the parties before the details are
supplied.
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| J3.5 |
| (a) |
It is the claimant's responsibility to prepare and lodge the agreed trial bundles.
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| (b) |
If another party wishes to put before the court a bundle that the
claimant regards as unnecessary he must prepare and lodge it
himself.
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| J3.6 |
| (a) |
Preparation of the trial bundles must be completed not later than 2
weeks before the date fixed for trial unless the court orders
otherwise.
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| (b) |
Any party preparing a trial bundle should, as a matter of course,
provide all other parties who are to take part in the trial with a
copy, at the cost of the receiving party. Further copies should be
supplied on request, again at the cost of the receiving party.
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| J3.7 |
Unless the court orders otherwise, a full set of the trial bundles must be
lodged with the Listing Office at least 7 days before the date fixed for trial.
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| J3.8 |
Failure to comply with the requirements for lodging bundles for the trial may result in the trial not commencing on the date fixed, at the expense
of the party in default. An order for immediate payment of costs may be
made.
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| J3.9 |
If oral evidence is to be given at trial, the claimant must provide a clean
unmarked set of all relevant trial bundles for use in the witness box. The
claimant is responsible for ensuring that these bundles are kept up to
date throughout the trial.
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| J4 |
Information technology at trial |
| J4.1 |
The use of information technology at trial is encouraged where it is
likely substantially to save time and cost or to increase accuracy.
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| J4.2 |
If any party considers that it might be advantageous to make use of
information technology in preparation for, or at, trial, the matter should
be raised at the case management conference. This is particularly
important if it is considered that document handling systems would
assist disclosure and inspection of documents or the use of documents at trial.
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| J4.3 |
Where information technology is to be used for the purposes of
presenting the case at trial the same system must be used by all parties
and must be made available to the court. In deciding whether and to
what extent information technology should be used at the trial the court
will have regard to the financial resources of the parties and will
consider whether it is appropriate that, having regard to the parties'
unequal financial resources, it is appropriate that the party applying for
the use of such information technology should initially bear the cost
subject to the court's ultimate order as to the overall costs following
judgment.
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| J5 |
Reading lists, authorities and trial timetable |
| J5.1 |
Unless the court orders otherwise, a single reading list approved by all advocates must be lodged with the Listing Office not later than 1 p.m.
two days (i.e. two clear days) before the date fixed for trial together with
an estimate of the time required for reading.
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| J5.2 |
| (a) |
If any party objects to the judge reading any document in advance
of the trial, the objection and its grounds should be clearly stated
in a letter accompanying the trial bundles and in the skeleton
argument of that party.
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| (b) |
Parties should consider in particular whether they have any
objection to the judge's reading the witness statements before the trial.
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| (c) |
In the absence of objection, the judge will be free to read the
witness statements and documents in advance.
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| J5.3 |
| (a) |
A composite bundle of the authorities referred to in the skeleton
arguments should be lodged with the Listing Office as soon as
possible after skeleton arguments have been exchanged.
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| (b) |
Unless otherwise agreed, the preparation of the bundle of
authorities is the responsibility of the claimant, who should
provide copies to all other parties. Advocates should liaise in
relation to the production of bundles of authorities to ensure that
the same authority does not appear in more than one bundle.
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| J5.4 |
Cases which are unreported and which are also not included in the index
of Judgments of the Commercial Court and Admiralty Court of England
and Wales should normally only be cited where the advocate is ready to
give an assurance that the transcript contains a statement of some
relevant principle of law of which the substance, as distinct from some
mere choice of phraseology, is not to be found in any judgment that has
appeared in one of the general or specialised series of law reports. The
index of Judgments of the Commercial Court and Admiralty Court of
England and Wales can be found
www.hmcourt-
service.gov.uk/infoabout/admiralcomm/index.htm
via the link to
"Searchable index of court cases" (at bottom of the box on right hand
side of Commercial Court and Admiralty Court), and is also available at
the BAILII website where it can be found at
www.bailii.org/cgi-
bin/summaries.cgi?index=comm
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| J5.5 |
| (a) |
When lodging the reading list the claimant should also lodge a trial timetable.
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| (b) |
A trial timetable may have been fixed by the judge at the pre-trial review (section D18.4 above). If it has not, a trial timetable should
be prepared by the advocate(s) for the claimant after consultation
with the advocate(s) for all other parties.
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| (c) |
If there are differences of view between the advocate(s) for the
claimant and the advocate(s) for other parties, these should be
shown.
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| (d) |
The trial timetable will provide for oral submissions, witness
evidence and expert evidence over the course of the trial. On the
first day of the trial the judge may fix the trial timetable, subject to
any further order.
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| J6 |
Skeleton arguments etc. at trial |
| J6.1 |
Written skeleton arguments should be prepared by each party.
Guidelines on the preparation of skeleton arguments are set out in Part 1 of Appendix 9.
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| J6.2 |
Unless otherwise ordered, the skeleton arguments should be served on
all other parties and lodged with the court as follows:
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| (i) |
by the claimant, not later than 1 p.m. two days (i.e. two clear days)
before the start of the trial;
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| (ii) |
by each of the defendants, not later than 1 p.m. one day (i.e. one
clear day) before the start of the trial.
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| J6.3 |
In heavier cases it will often be appropriate for skeleton arguments to be
served and lodged at earlier times than indicated at section J6.2. The
timetable should be discussed between the advocates and may be the
subject of a direction in the pre-trial timetable or at any pre-trial review.
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| J6.4 |
The claimant should provide a chronology with his skeleton argument.
Indices (i.e. documents that collate key references on particular points,
or a substantive list of the contents of a particular bundle or bundles) and
dramatis personae should also be provided where these are likely to be
useful. Guidelines on the preparation of chronologies and indices are set
out in Part 2 of Appendix 9.
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| J7 |
Trial sitting days and hearing trials in public |
| J7.1 |
Trial sitting days will not normally include Fridays.
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| J7.2 |
Where it is necessary in order to accommodate hearing evidence from
certain witnesses or types of witness, the court may agree to sit outside
normal hours.
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| J7.3 |
The general rule is that a hearing is to be in public: rule 39.2(1).
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| J8 |
Oral opening statements at trial |
| J8.1 |
Oral opening statements should as far as possible be uncontroversial and
in any event no longer than the circumstances require. Even in a very heavy case, oral opening statements may be very short. There remains
some confusion amongst advocates as to what is necessary to adduce a
document other than a witness statement or expert report in evidence.
Whereas there can be no doubt that any disclosed document can be
relied on as evidence of the facts contained in it or as evidence of its
existence or the use to which it was put, see Civil Evidence Act 1995Acts
S.2(4) and CPR 32.19 the mere inclusion of a document in the agreed trial bundles does not in itself mean that it is being adduced in evidence
by either party see Appendix 10. For this to happen either the parties
must agree that the document in question is to be treated as put in
evidence by one or other of them and the judge so informed or they must
actively adduce the document in evidence by some other means. This
might be done by counsel inviting the judge to read the document relied
upon before the calling of oral evidence. It may however be more
efficient for the document or part of it to be read to the court in the
course of opening. That will be a matter for the judgment of the advocates in each case. However, whichever course is adopted, it will
not normally be appropriate for reliance to be placed in final speeches on
any document, not already specifically adduced in evidence by one of
the means described.
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| J8.2 |
At the conclusion of the opening statement for the claimant the advocates for each of the other parties will usually each be invited to
make a short opening statement.
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| J9 |
Applications in the course of trial |
| J9.1 |
It will not normally be necessary for an application notice to be issued
for an application which is to be made during the course of the trial, but
all other parties should be given adequate notice of the intention to
apply.
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| J9.2 |
Unless the judge directs otherwise the parties should prepare skeleton
arguments for the hearing of the application
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| J10 |
Oral closing submissions at trial |
| J10.1 |
All parties will be expected to make oral closing submissions, whether
or not closing submissions have been made in writing. It is a matter for
the advocate to consider how in all the circumstances these oral
submissions should be presented.
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| J10.2 |
Unless the trial judge directs otherwise, the claimant will make his oral
closing submissions first, followed by the defendant(s) in the order in
which they appear on the claim form with the claimant having a right of
reply.
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| J11 |
Written closing submissions at trial |
| J11.1 |
| (a) |
In a more substantial trial, the court will normally also require
closing submissions in writing before oral closing submissions.
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| (b) |
In such a case the court will normally allow an appropriate period
of time after the conclusion of the evidence to allow the
preparation of these submissions.
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| (c) |
Even in a less substantial trial the court will normally require a
skeleton argument on matters of law.
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| J12 |
Judgment |
| J12.1 |
| (a) |
When judgment is reserved the judge may deliver judgment orally
or by handing down a written judgment.
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| (b) |
If the judge intends to hand down a written judgment a copy of the
draft text marked
"Draft Judgment"
and bearing the rubric:
" This is a judgment to which the new Practice Direction -- Reserved Judgments
(which supplements CPR Part 40 with effect from 1st October 2005) applies. It
will be handed down on at in Court No . This Judgment is
confidential to Counsel and Solicitors, but a copy may be shown, in confidence,
to the parties provided that neither the Judgment nor its substance is disclosed
to any other person or used in the public domain, and no action is taken (other
than internally) in response to the Judgment, before the Judgment is handed
down. Any breach of this obligation of confidentiality may be treated as a
contempt of court. The official version of the judgment will be available from
the Mechanical Recording Department of the Royal Courts of Justice once it
has been approved by the judge.
The court is likely to wish to hand down its judgment in an approved final
form. Counsel should therefore submit any list of typing corrections and
other obvious errors in writing (Nil returns are required) to the clerk to
, by fax to 020 7947 or via email at , by on
, so that changes can be incorporated, if the judge accepts them, in
the handed down judgment."
will normally be supplied to the advocates one clear day before the
judgment is to be delivered.
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| (c) |
Advocates should inform the judge's clerk not later than noon on
the day before judgment is to be handed down of any
typographical or other errors of a similar nature which the judge
might wish to correct. This facility is confined to the correction of
textual mistakes and is not to be used as the occasion for
attempting to persuade the judge to change the decision on matters
of substance.
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| (d) |
The requirement to treat the text as confidential must be strictly
observed. Failure to do so amounts to a contempt of court.
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| J12.2 |
| (a) |
Judgment is not delivered until it is formally pronounced in open
court.
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| (b) |
Copies of the approved judgment will be made available to the
parties, to law reporters and to any other person wanting a copy.
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| (c) |
The judge may direct that the written judgment stand as the
definitive record and that no transcript need be made. Any
editorial corrections made at the time of handing down will be
incorporated in an approved official text as soon as possible, and
the approved official text, so marked, will be available from the
Mechanical Recording Department.
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| J12.3 |
If at the time of pronouncement of the judgment any party wishes
to apply for permission to appeal to the Court of Appeal, that
application should be supported by written draft grounds of appeal.
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| J13 |
Costs |
| J13.1 |
The rules governing the award and assessment of costs are contained in
CPR Parts 43 to 48.
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| J13.2 |
The summary assessment procedure provided for in Parts 43 and 44 also
applies to trials lasting one day or less.
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