Trial Procedure
Dispute Resolution > Trial Procedure
At trial, the claimant's barrister opens the case, calls evidence from three witnesses, and then closes. The defendant's barrister objects to the order of proceedings, arguing that the defendant should have the right to close the case because the defendant bears the burden of proof. The judge overrules the objection and allows the claimant to close. The defendant then appeals, arguing that the judge erred in the order of proceedings. This scenario tests SQE1 candidates on the order of proceedings at trial and the burden of proof in civil cases—the claimant bears the burden of proving the case on the balance of probabilities, not the defendant.
What Is Trial Procedure in SQE1?
Trial procedure refers to the process by which a civil case is heard and determined by a judge (and, in rare cases, a jury). It covers the preparation immediately before trial, the conduct of the hearing itself, and the delivery of judgment. The CPR and relevant practice directions set out the steps, but the judge has significant case management discretion over how the trial is conducted. Understanding trial procedure is essential for SQE1 because examiners test the order of proceedings, the burden and standard of proof, the role of witness evidence and expert evidence, and the judge's discretion in managing the trial.
Candidates must also understand how trial procedure interacts with evidence rules, costs and funding, and appeals and enforcement. The distinction between evidence-in-chief (given through the witness statement), cross-examination (conducted by the opposing party), and re-examination (conducted by the party calling the witness) is also frequently tested.
Key Principles for SQE1
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Trial Bundles: The claimant is responsible for preparing and filing the trial bundle—a paginated, indexed collection of key documents—usually 3 to 7 days before trial (as directed by the court). The bundle must be agreed between the parties where possible.
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Skeleton Arguments: Both parties typically file skeleton arguments setting out their legal submissions and the key issues for the judge. These are filed before trial to allow the judge to prepare.
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Order of Proceedings (Typical): (1) Claimant's opening speech; (2) Claimant's evidence (witnesses are examined in chief via their witness statements, then cross-examined by the defendant, then re-examined); (3) Defendant's evidence (same process); (4) Closing submissions (defendant typically closes first, then claimant closes last); (5) Judgment.
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Burden of Proof: The claimant bears the burden of proving their case on the balance of probabilities (not the defendant). This is sometimes stated as "more likely than not."
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Standard of Proof: The balance of probabilities—this is the civil standard, lower than the criminal standard of "beyond reasonable doubt."
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Witness Evidence: Witness statements stand as evidence-in-chief (CPR r.32.5). Witnesses may be cross-examined and re-examined. The judge controls the scope of questioning and may draw adverse inferences from failure to call available witnesses.
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Expert Evidence: Experts may give oral evidence and be cross-examined. The court may direct 'hot-tubbing' (concurrent expert evidence), where experts give evidence simultaneously and discuss points of disagreement.
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Judgment: The judge delivers judgment, either immediately (ex tempore) or on a later date (reserved judgment). The judgment sets out findings of fact, the law applied, and the orders made.
Exam tip
Trial procedure questions test the burden of proof (claimant proves on the balance of probabilities) and the order of proceedings. Remember that the defendant typically closes first (not last)—the claimant, bearing the burden of proof, has the right to close after the defendant. The judge may draw adverse inferences from failure to call available witnesses. Know the burden of proof and the order of proceedings inside out.
How This Appears in SQE1 Questions
SQE1 questions on trial procedure often test the order of proceedings and the roles of different types of evidence. A common trap is getting the order of closing submissions wrong—the defendant typically closes first, followed by the claimant (who bears the burden). Questions may also test who is responsible for preparing the trial bundle (the claimant) and the distinction between evidence-in-chief and cross-examination. You might see questions about the judge's power to draw adverse inferences from failure to call witnesses, the scope of re-examination, or the distinction between expert evidence and other evidence. This is a classic SQE1 trap.
Common Mistakes Students Make
- Getting the order of closing submissions wrong—the defendant typically closes first, then the claimant (who bears the burden).
- Forgetting that the claimant is responsible for preparing the trial bundle.
- Confusing evidence-in-chief (given through the witness statement) with cross-examination (conducted by the opposing party).
- Assuming that individual procedural rulings during trial can be immediately appealed—they generally cannot.
Quick Summary
- Claimant is responsible for preparing and filing the trial bundle (3–7 days before trial).
- Order of proceedings: claimant opens, claimant's evidence, defendant's evidence, closing submissions (defendant first, then claimant), judgment.
- Witness statements stand as evidence-in-chief under CPR r.32.5.
- Burden of proof: balance of probabilities (claimant must prove their case).
- Judgment may be given immediately (ex tempore) or reserved to a later date.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A solicitor acts for the claimant in a breach of fiduciary duty claim against a former director. The claim is allocated to the multi-track. At the pre-trial review, the judge made detailed case management directions, including a timetable for the trial. The trial is listed for five days. On the first day of the trial, the claimant's counsel opens the case and calls the first witness. By the end of the third day, the claimant has not yet closed her case, and four of the claimant's five witnesses have been cross-examined at greater length than anticipated. The judge expresses concern that the trial will overrun. The judge indicates that she is considering limiting the time available for the defendant's witnesses to ensure the trial is completed within the five days listed. The defendant's counsel objects, arguing that the defendant has a right to call all of his witnesses and cross-examine the claimant's remaining witness without time constraints. The solicitor is aware that the overriding objective includes dealing with cases proportionately and ensuring they are dealt with expeditiously.
What is the most likely approach the judge will take to manage the overrunning trial?
Question 2
Scenario
A claimant obtains a money judgment against a defendant for £60,000 in a breach of contract claim. The defendant does not pay the judgment debt. The claimant's solicitors write to the defendant demanding payment within 14 days. The defendant does not respond. The claimant's solicitors are considering the available methods of enforcement. They are aware that the defendant owns a residential property and has a regular income from employment. The defendant also has a current account with a high street bank. The claimant's solicitors wish to obtain information about the defendant's financial position before selecting the most appropriate enforcement method. The defendant has not previously been subject to enforcement proceedings. The claimant's solicitor notes that the defendant has recently posted photographs of an overseas holiday on social media. The claimant instructs solicitors to take all necessary steps to recover the judgment debt.
What is the appropriate first step for the claimant to obtain information about the defendant's means before selecting an enforcement method?
Question 3
Scenario
A district judge in the County Court dismisses a claim for breach of contract brought by a small business owner against a supplier. The district judge finds that the claimant failed to establish that the goods supplied were defective. The claimant's solicitor believes the district judge made an error of law in applying the wrong test for determining whether goods are of satisfactory quality. The claimant wishes to appeal. The claimant's solicitor applies to the district judge for permission to appeal within 21 days of the judgment. The district judge refuses permission to appeal. The claimant's solicitor then files an appellant's notice with the circuit judge, seeking permission to appeal. The supplier's solicitor argues that the appeal is out of time because more than 14 days have passed since the original judgment. The claimant's business has suffered a significant downturn since the judgment was handed down. The claimant and the supplier had previously attempted to settle the dispute through informal negotiations. The trial had lasted one full day and included oral evidence from both parties.
To which court should the appeal from the district judge's decision be directed?
Practice with full exam-style questions
Related Topics
- Dispute Resolution for SQE1: Complete Guide
- Evidence in Civil Proceedings
- Appeals and Enforcement
- Costs and Funding
Practise Trial Procedure Questions for SQE1
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