Preparing for a hearing: What do you need to do?

The Hearing Bundle

The bundle is a critical part of a hearing. As the main source of documentation for the case, all parties (including importantly the judge or tribunal) will handle it and its proper construction can help the flow of a hearing, assist the advocates in their submissions, avoid criticism by the judge or tribunal and ensure effective cross-examination.  

Generally, solicitors for the claimant, or in an interim application, the applicant, have overall responsibility for preparing the hearing bundle. 

Whilst the responsibility usually falls on the claimant, the parties should discuss the bundle, in correspondence, to ensure that all relevant documents are included, the bundle is not contentious and the parties meet the court’s deadline. In relation to deadlines, pursuant to CPR 39.5 and CPR 32PD 27.4, and unless the court orders otherwise, the claimant must file the bundle no less than three days and no more than seven days before the start of the hearing. For cases in the Commercial Court, paragraph J4.7 of the Commercial Court Guide requires the parties to issue a full set of trial bundles at least 7 days before the start of the trial. If the parties have created a “core bundle”, this should be provided by 4 pm on the last working day prior to the start of the trial.  

What documents should be included in the Trial Bundle?

Pursuant to CPR 32PD 27.5, and unless the court orders otherwise, the trial bundle should include: 

(a) the claim form and all statements of case;

(b) a case summary and/or chronology where appropriate;

(c) requests for further information and responses to the requests;

(d) all witness statements to be relied on as evidence;

(e) any witness summaries;

(f) any notices of intention to rely on hearsay evidence;

(g) any notices of intention to rely on evidence (such as a plan, photograph etc.) which is not (i) contained in a witness statement, affidavit or experts’ report; (ii) being given orally at trial; and (iii) hearsay evidence;

(h) any medical reports and responses to them;

(i) any experts’ reports and responses to them;

(j) any order giving directions as to the conduct of the trial; and

(k) any other necessary documents.

Parties involved in High Court litigation should also need to consider the relevant court guide when preparing the hearing bundle as this may have specific guidance for the each specialist court. 

How to format the hearing bundle?

The format of the hearing bundle is essential to its swift navigation. The court requires that (i) the bundle is paginated in the bottom right hand corner and (ii) contains an index with a brief description of the document and its page number, see CPR 32PD 27.8. Check with advocates / the judge / tribunal if there is a particular format they would prefer for their own hearing bundles. If you are the claimant, do not forget a spare set for the witness box.

It is inevitable that bundle insertions will have to be made during trial. You will need to liaise with the other side and the judge’s clerk / tribunal to facilitate this. Remember – you should never update the judge / tribunal’s personal bundles without their permission. They may have written notes in the margins etc which should not be seen by the parties. 

As the courts have modernised, the default position is that the hearing bundle should be electronic. Nevertheless, the court may direct that a hard copy bundle be produced (and in smaller cases this can still be more cost-efficient). If so, the courts direct that: (i) the bundle should be in a ring binder or lever arch file, pursuant to CPR 32PD 27.9, and (ii), unless the court otherwise directs, documents should be double-sided, see CPR 32PD 27.15.

Witness Preparation

Even for the most experienced professional expert witnesses, giving evidence at a trial or hearing can be nerve-racking. For lay persons the process may be completely alien and significant forethought should be given to how to support the witness and assist them with their preparation well in advance of the hearing.

The process for giving evidence is fairly logical and similar across litigation and arbitration proceedings. 

1. Affirmation – Firstly, the witness will be asked to either take an oath under a religious text or make an affirmation (this is not always done in arbitration).

2. Evidence in chief – Then, the party calling the witness will ask preliminary questions, such as confirming the witness' first name and signature.

3. Cross-examination – Next, the advocate for the other side will conduct cross examination, asking critical questions.

4. Re-examination – Finally, the witness’ advocate may ask some further questions; these questions must not be ‘leading questions’ and can only seek to clarify matters that arose in cross-examination. 

Witness familiarisation

In England and Wales, solicitors are prohibited from coaching witnesses on their evidence; however, they are permitted – albeit under strict guidelines – to provide familiarisation training. This can be helpful, especially if the witness’ evidence is particularly pertinent to the outcome of trial. 

Witness familiarisation strategies that are effective and within solicitors’ professional obligations may include creating a pack with key documents for the witness to read, completing a court visit, and meeting with the advocate in advance of trial.  

General tips on witness familiarisation

1. Make sure the witness reviews:

• their statement before giving evidence 
• any relevant contemporaneous documentation
• ideally, the pleadings/statements of case

2. Detail who the judge/tribunal and other advocates are

3. Advise the witness on how to address the judge/tribunal

4. Allow sufficient time for preparation (perhaps by bringing them into the office for the day or a few days to give them dedicated time to prepare).

Courtroom Etiquette

The atmosphere of the court or hearing room reflects the serious nature of legal proceedings. If you are attending court you should wear formal, dark business attire. It is also important to switch electronic devices to silent and remain quiet, unless you are invited to talk by the advocates / judge / tribunal. 

When the Judge/tribunal enters the courtroom, all parties should stand. The Judge/tribunal will bow when they arrive at the bench and when they leave the court or hearing room; it is customary to bow back. 

In the post pandemic world, hearings can now either be in-person, remote, or hybrid. In general, the court prefers remote hearings for shorter hearings such as applications, Case Management Conferences, or Pre-Trial Reviews.  Remote and hybrid hearings can be beneficial where parties are based across the country, or in different jurisdictions. Upon entering the remote court parties should switch off their camera, mute their microphone and refrain from using a ‘chat’ function. 

The author of this article would like to thank Jake Burke, Norton Rose Fulbright solicitor apprentice, and Lamar Mukundi, Norton Rose Fulbright solicitor apprentice, for their invaluable contributions to this article.