Hearings in a civil claim

This guide is for you if you

• are involved in a civil claim in either England or Wales, and
• your case involves a claim for £25,000 or less, and
• you are representing yourself (you are a litigant in person) and not eligible to have your case paid for by legal aid, a trade union, or insurance.

This guide is also for people supporting litigants in person, for example Support Through Court volunteers, Citizens Advice volunteers, housing support workers, advice workers and court staff, as well as relatives and friends.

This guide is not for you if you are involved in

•  a criminal case,
• a family case (such as an application for a domestic violence injunction or a divorce),
• a housing disrepair or housing possession case including mortgage possession,
• an injunction (including a court claim about anti-social behaviour)
• a medical accident case,
• a case involving defamation (that is libel or slander) or
• a tribunal case (such as a discrimination or employment case).

Legal language

We try to explain any legal language as we go along, but there is also a ‘What does it mean?’ section at the end.

May 2020

A ‘hearing’ is the name given to any meeting that takes place with a Judge, including the trial. The hearing might be face to face or by telephone. The trial is the final hearing; the one when a Judge decides who wins and who loses the case.

Hearings before the trial are usually shorter and less formal events than the trial. They are a bit like a business meeting. They can happen at any point in the case up until the trial. Most cases have none or very few of them. A small claim is unlikely to have any hearing before the trial.

The number of hearings that take place before the trial will partly depend on:

• the complexity of the case;
• whether the parties can agree how the case will be run; and
• whether everyone does the tasks either they agree to do or the court tells them to do on time.

If your case is complex, or there are problems with the preparation, you may hear different hearings mentioned. The clue about what happens at each of these hearings is usually in the name. Here are some of them:

• Directions hearing – a hearing where the Judge gives instructions about what needs to be done to get the case ready for trial. Often everyone is able to agree what should be included in this list of instructions.
• Case management conference – a hearing to talk about how to run the case. What needs to be done and who will do it? You can find a short film about Case management conferences on the Ministry of Justice YouTube channel.
  
• Preliminary hearing – If the judge thinks that a hearing is necessary in a small claim before the trial, it may be referred to as a preliminary hearing.   
• Application hearing – a hearing to deal with an interim application made by one of the parties (for further information, see our guide “Interim applications - how to ask a civil court to do something”
• Listing hearing – a hearing to discuss when to put a case in the list of cases to be heard by a Judge. You may also discuss where the trial will take place and how much time it will take.

In the past, most hearings took place in person with everybody turning up at court to talk to the Judge face to face. These days it is common for some types of hearing to take place over the phone. For a phone hearing, the court will send you a time and date for a 3-way telephone conversation to take place between you, the judge and the other party.

The trial is the final hearing where a Judge hears the evidence and makes a decision. But this only happens if the parties can’t reach an agreement on how to sort out their dispute themselves before then.

People often think that the Judge will run the hearing; that the Judge will ask the other party questions, give them a hard time or unpick the evidence to get at the truth. This is not what happens. If it is your claim, you have to take the lead. Judges vary in how they start a trial. The Judge may invite you to speak, or not. They may just expect you to stand up and start. If you are not sure what to do, just stand up and say something like, ‘Would you like me to start now?’ The court staff outside the court before the hearing starts will be able to tell you how to address the judge assigned to your case. If you don’t know the Judge’s name or how senior they are, it is best to call a man ‘Sir’ and a woman ‘Ma’am’.

If the trial is taking place in a formal courtroom you sit in the front row. A member of court staff may look after you while you are waiting outside for the case, and show you where to sit when the case starts. You stand up when you want to speak and sit down when someone else speaks.

In a small claim, the hearing is likely to be more informal, probably in a judge’s room rather than a court room. You and the defendant may just be seated on opposite sides of a table.  In this situation it is usual for everyone to stay seated when they speak. If in doubt, you can ask the judge.

What happens if I don’t turn up?

If you don’t turn up to the trial, perhaps because you are feeling very nervous, the trial will still go ahead. If you don’t go, it is highly likely that you will lose and have to pay the other party’s costs as well as your own. If you are nervous, you will almost certainly be allowed to have a friend or family member accompany you for support.

What do I have to do to get ready for the trial?

You may think that what you want to say on the day will just occur to you at the time. You cannot rely on this. You need to prepare. You need to think about what you are going to say; plan the questions you want to ask the witnesses and make notes to take with you into court. You also need to get your papers organised and be familiar with where everything is.

Preparation is also a way of focusing on what it is you have to prove and being ready to do that. You also need to understand those bits of the law that affect your case.

Opening submission

This is how you start or open your case. It is just a few sentences said out loud by you summarising your claim and what you intend to prove before you explain what evidence you have got to support your claim. It should take no longer than one or two minutes to say. In a small claim you may not be expected to make one at all. And in a small claim you will probably stay sitting as the court is more informal.

You may think that what you want to say on the day will just occur to you at the time. You cannot rely on this. You need to prepare. You need to think about what you are going to say; plan the questions you want to ask the witnesses and make notes to take with you into court. You also need to get your papers organised and be familiar with where everything is.

Preparation is also a way of focusing on what it is you have to prove and being ready to do that. You also need to understand those bits of the law that affect your case.

Opening submission

This is how you start or open your case. It is just a few sentences said out loud by you summarising your claim and what you intend to prove before you explain what evidence you have got to support your claim. It should take no longer than one or two minutes to say. In a small claim you may not be expected to make one at all. And in a small claim you will probably stay sitting as the court is more informal.

Evidence in chief

‘Evidence in chief’ is the phrase used to mean the evidence your own witnesses will give on your behalf.

You might also hear the term ‘direct examination’ or ‘examination in chief’ which are phrases left over from the days when witnesses usually gave their evidence by answering questions.

Giving ‘evidence in chief’ is the process of asking your own witnesses questions so their evidence can be heard by the Judge. Both the claimant and the defendant get a very limited chance to do this, as these days witness evidence in chief is mostly done just through witness statements, rather than witnesses going into the witness box and you asking them questions.

If you and your witness are happy with their statement then you just need to ask them to confirm that the content is true. If there are any mistakes or problems with what one of your witnesses has said then it is your only opportunity to deal with this. Get the witness to explain, for example, what the mistake is and why it was made and what the correct position is. It is much better to get this out in the open as soon as possible rather than leave it to the other party to expose it and make it look as though you were hiding something.

The witness statement is treated as that witness’s full evidence. If you want the witness to expand on something in their statement, you will have to ask the Judge for permission, and there will need to be a good reason. You will be allowed to ask the witness questions about something that has happened since the witness statements were exchanged. But if you have simply forgotten to include something relevant in the witness statement, then the Judge is unlikely to allow you to make up for that at the trial.

Small claims: In a small claim the judge can decide on any way of managing the hearing that he or she considers fair. This might mean the judge decides to question the witnesses directly, before allowing anyone else to. The judge might also decide to limit cross-examination, or not allow it at all.

Cross examination

Cross examination is the legal term used to describe the process of asking the other party’s witnesses questions. The claimant, the defendant and any other witnesses must all expect to be cross-examined.

You need to think about:

• The questions you are going to ask other people.
• The questions you and your witnesses are likely to be asked by the other party. Put yourself in their shoes. What would you ask yourself if you were them?

The questions you are going to ask other people

Your aim is to bring out the facts that support your own case and weaken the other party’s case. Your questions need to relate to liability; the value of your claim and the credibility of their witnesses or evidence.

You usually suggest that something happened differently or that it didn’t happen at all. You may be able to do this, for example, by comparing what the witness says with contrary evidence, for example, in a document or photograph.

You need to do some advance preparation by reading through the other party’s witness statements carefully and picking out any problems with what they say. The kind of things you are looking for are points that undermine their case or support your own. Cross examination is your only chance to do this – so don’t miss it. Resist the temptation to comment on what the other party’s witnesses say in reply to your questions. Leave this for when you make your closing submission.

The questions the other party asks you and your witnesses

You also need to prepare yourself and your witnesses for cross examination by explaining the questions you think it is likely they will get asked. This does not mean you can tell them what to say – you can’t. They have to come up with their own answers. They need to be truthful and answer the questions they are asked and no more.

Re-examination

Re-examination is the legal word used to describe the process of asking your own witnesses some more questions after they have been cross examined by the other party. The purpose is to give them a chance to explain things that came up when they were questioned by the other party to make sure that the Judge is not left with the wrong impression about something. You are not allowed to use re-examination simply to ask things which did not come up in cross-examination but which you forgot to ask first time round.

However, what you don’t want to do is make a bad situation worse. So, unless you know that what your witness will say in answer to your question is going to improve the situation, it may be better to leave things as they are and ask no further questions.

Closing submission

This is how you end your case. Both the claimant and the defendant get a chance to make a closing statement to the court. The defendant speaks first and the claimant last.

You should be able to work out most of what you want to say before the trial starts. You have some idea of what the evidence is going to be from the witness statements and documents that have been filed. You also know what your strongest points are. But you will need to take into account what actually happens in the trial. So, you need to be adaptable and leave room for any changes you want to make on the day.

Focus on the Particulars of Claim (if you are the claimant) and the Defence (if you are the defendant), the evidence given, and the legal arguments that support your case and why you think the Judge should prefer your evidence more than the other party’s. Make sure you cover issues of credibility, liability and value. Highlight any inconsistencies in the other party’s evidence. You may want to summarise briefly how and why their evidence is less believable than your own and how you have proved your case.

The Judge’s order - judgment

The Judge decides who wins and who loses based on whose version of events they prefer and think more believable. The Judge then makes an order about what happens as a result of their decision. This is called ‘giving judgment’. The judgment will say who has won and if you won, how much you have been awarded in compensation and interest.

The court will send both parties a copy of the court order in the post.

Once the Judge has made their decision, they will deal with the issue of costs, and you need to be prepared to deal with that, whether you have won or lost.

Costs

As soon as the Judge has made their decision and if you have won, you should stand up and say ‘Please can I have my costs’. You need to be assertive and not lose the opportunity to get paid for the time you have spent on your case.

You must get an order for costs to allow the court to assess them. For further information about costs and costs assessment see Legal costs and who pays them.

Even if you win, you may have problems getting your hands on what the court awards you. If the other party does not pay or does not do what the court orders, then there are things you can do to make this happen. This process is called ‘enforcement’. There are lots of different methods of forcing the other party to obey the court’s order. But the court doesn’t enforce their order for you, unless you ask. You have to pay the costs involved. You may not get this money back.

You can find out more about enforcement in this court leaflet What to do if a defendant doesn't pay money after judgment (EX321). This same link also takes you to Welsh language and large print versions.

You can find the short film When you arrive for your county court hearing on the Ministry of Justice You Tube channel.

It gives you an idea of what to expect when you arrive at court for your hearing.

Interpreters

If English is not your first language or if you’re deaf or hard of hearing, you may need an interpreter so that you can take part in the court proceedings.  Find information about when you may be able to get an interpreter for free.

Sometimes the courts will allow you to take a friend or relative to help you to explain what you want to say. If the court will not allow this, it is still a good idea to take a friend to support you and to talk to court staff on your behalf before and after the hearing.

Evidence in chief - means the evidence your own witnesses will give on your behalf.

Directions hearing - a hearing where the Judge gives instructions about what needs to be done to get the case ready for trial.

Case management conference – a hearing to talk about how to run the case.

Cross examination - the process of asking the other party’s witnesses questions.

Listing hearing – a hearing to discuss when to put a case in the list of cases to be heard by a Judge.

Re-examination - the process of asking your own witnesses some more questions after they have been questioned by the other party.

Witness statement - a document in which someone explains what they saw, did or heard.

Disclaimer

The information in this guide applies to England and Wales only. The law may be different if you live in Scotland or Northern Ireland. The law is complicated. We have simplified things in this guide. Please don’t rely on this guide as a complete statement of the law. We recommend you try and get advice from the sources we have suggested.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.

Acknowledgements

This guide was produced by Law for Life's Advicenow project with additional material from Laura Bee. Thanks also to Laura Bee who peer reviewed it.

Thanks to the Bar Standards Board for funding the creation of this guide.