What is a Pre-Trial Review?
The Pre Trial Review is a case management conference listed for hearing in the last stages before the trial due to be heard.
It’s a trial management conference, to ensure that the parties either are ready or will be ready for trial.
If one or more of the parties isn’t ready for the trial, the court has the opportunity to make orders to require the steps that need to be done to be done to ensure the parties are ready.
The process undertaken by the court involves:
- checking compliance with previous court orders: verifying that the parties to the litigation have complied with previous court orders and case management directions
- approving the trial timetable, which might include:
- direct the issues in dispute are to be heard in a designated order at the trial
- issues relating to the admissibility of evidence in witness statements
- do the parties require use of any technology at the hearing
- setting case management directions which are required for the trial, such as:
- varying previous directions to accommodate changes in circumstances
- ensuring availability of the witnesses and experts
- rectifying shortfalls in compliance with previous orders
- preparation and filing of written submissions, if required
- preparation of trial bundles:
- allocation of responsibility to prepare them
- when they are to be filed and served
- fixing a time and date for the trial, if it has not already been fixed
Pre Trial Checklist
Pre trial checklists (Court Form N170, also known as listing questionnaires) are used by parties to litigation to inform the court of the state of their preparation for the trial.
It seeks to confirm what should have already have been done, and:
- provide a last opportunity for the parties to re-estimate the time for the trial
- ascertain whether the parties will be legally represented
- confirm the estimated length of the trial; and
- prepare draft directions for consideration the court if further directions are required
What needs to be done to prepare for this case management conference will depend on the state of readiness to the parties for hearing.
Much depends on the type of case, evidence required for a fair trial.
The outcome of pre-trial reviews are further case management directions, if they're needed.
The Timetable for Trial
Trial timetables set out how the time available for trial will be used.
The first draft should be prepared by the claimant and sent to the defendant and any other party to the proceedings to ascertain whether the timetable for trial may be agreed, in advance of the pre-trial review.
Once the trial timetable is agreed, it is sent to the court in time for the pre-trial review for approval or amendment by the court.
Items for the Trial Timetable
which includes the sequence and time allotted for each of the stages of the trial which include:
- opening statements (also known as as opening speeches and opening submissions)
- evidence-in-chief (if oral evidence is to be given)
- when experts will be cross-examined
- when non-expert witnesses will be cross-examined, and
- closing statements / speeches / submissions
After the claimant prepares the first draft of the trial timetable and serves it, if the parties cannot agree how the time will be allocated, they are expected by the court to cooperate to minimise areas of dispute.
If the trial timetable cannot be agreed, the court will resolve those matters at the pre-trial review.
Example: Trial Timetable
A trial timetable may be as simple as this, presented on the court header:
|
Day |
Date |
Event |
|
1 |
[date of first day of trial] |
Before lunch - Oral openings |
|
2 |
[trial + 1] |
Before lunch – Evidence of [Witness B and Witness C] After lunch – Evidence of [Witness D] |
|
3 |
[trial + 2] |
Evidence of [Witness D] |
|
4 |
[date + 3] |
Before lunch –Oral closing submissions (Claimant) |
The Court may direct that the order events are to take place is varied from the trial timetable at or before the trial.
The timetable for trial should be filed with the trial bundle.
Ultimately, the judge at the trial controls the order of proceedings, and may choose to depart form the trial timetable.
Chronology for Trial
Also at about the time of the pre trial review, the chronology for the trial should be nearing completion.
A chronology is a document listing key events in civil claims litigation.
A chronology for trial is intended provide a brief and concise sequence of events relevant to the disputes to be decided by the court.
It’s a time line of key events. It means that evidence in the trial bundle can be seen in time sequence without having to read each document in the trial bundle.
Chronologies should be drafted objectively (ie without favour or preference to either party) to increase the prospect it will be agreed, and avoid the need for the judge to refer to two chronologies at the trial.
The chronology for trial is relatively simple to draft, once you've got the right format.
Date for Trial
Trials in civil cases are only listed after an order is made by the Court.
If the trial has not already listed for hearing in previous case management directions, the court is likely to make arrangements for the timing of the trial at the pre-trial review.
How cases are Listed for Trial: Trial Windows
The trial in litigation may be listed in at least 3 ways:
- fixed trial date(s): a specific date of commencement of the trial is set (or “fixed”). The trial commence on that date and is programme for the number of days in the time estimate for the trial
- trial window:
- the trial is fixed for the set number of days between two dates.
For instance, a 3 day trial may be listed to be heard at any time during a three week period, or - the trial commences from a specified date.
- the trial is fixed for the set number of days between two dates.
-
not before a date: A Judge or Master in the High Court might order that the litigation is listed for trial “not before” a specified date. The parties are ordered to arrange a Listing Appointment with the relevant Listing Office. The Listing Office will then adopt one of the courses set out above.
When a trial window is used to set the trial date, the parties are notified shortly before the trial will commence that the trial will commence on a specified date within the window. The Listing Office will provide as much notice as possible, however notice may be as little as 24 hours.
In multi-track cases the court will list the proceedings for hearing as soon as practicable; in less complex cases this may be at the case management conference.
Listing Appointment
When attending a Listing Appointment, the parties should (or must) have with them the dates that they and their legal representatives are not available (ie “dates to avoid”).
Adjournment of the Trial
The case management powers enable the Court to adjourn the trial.
However, once trial dates are fixed decisions to adjourn the trial are not taken lightly.
Applications to do so are usually only granted where there are circumstances outside the control of the parties. Circumstances include:
- serious illness
- practical impossibility of being ready for the trial date,
- a pending appeal in another case which may affect the outcome of the trial if it heard before hand, or
- evidence being served shortly before the trial.
Even when the trial is adjourned, it may come with serious costs consequences for the party to the litigation requesting the adjournment.
Where there is a failure by one of the parties to properly prepare for the trial due to a non-compliance with civil case management directions, it is almost certain that the adjournment will be refused.
Failures to Comply: Sanctions
Things need to be done by the dates fixed, and if they are not, then (very) good reason is needed not to do so. Even then, the court should must be informed in advance of the inability not to do something by the date required by the case management directions.
Court maintain broad powers to sanction failure to comply with directions.
Failures to comply with deadlines for filing disclosure lists, expert or lay evidence or any other direction often results in the court issuing an ‘unless order’.
Unless orders require a party to take stated steps in the proceedings by a specified time.
When the litigant fails to comply with the unless order, consequence will follow, such as:
- adverse costs orders
- striking out of a statement of case or summary judgment
These days, case management directions are not a flexible timetable, no matter how unreasonable the directions may appear to be to one, both or all parties.
Once they are made, an application notice must be filed to vary the case management directions, setting out the changes requested the (good) reasons why they are requested.
Sanctions for Non-Compliance
The court maintains broad case management powers to sanction failure to comply with directions.
Failures to observe the deadlines for filing disclosure lists, expert or lay evidence or any other direction may result in an ‘unless order’.
Unless orders require a party to take stated steps in the proceedings by a specified time.
If the litigant then fails to comply with the order, some consequence such as:
- adverse costs orders
- striking out of a statement of case
- summary judgment or
- some specified sanction.
Example: Sanctions
In HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management (2014), a Saudi Prince was ordered to personally sign a statement of truth by 3 High Court Judges.
He continued to refuse to do so.
The Supreme Court made an unless order requiring the Prince to do so. The appeal by the Prince was dismissed with the agreement of the four other Law Lords hearing the appeal.
In doing so, the Supreme Court refused to interfere with the Orders of the 3 High Court Judges who ordered him to do so before them.
The Supreme Court said:
it would be inappropriate for an appellate court to reverse or otherwise interfere with case management directions, unless it was 'plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree
The case management directions were well within the generous margin accorded to case management decisions of first instance judges.
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