Trial advocacy is challenging. This is, in part, because trials are unpredictable, with many different moving parts that cannot be controlled. A good way of dealing with that unpredictability is to have a detailed knowledge of the case, and the key documents within it, to allow one to change direction if needs be.

That’s why a good advocate doesn’t scrimp on spending focused preparation time. There is limited scope for taking shortcuts; a successful advocate must put the hours in to get the required level of understanding of the case. Don’t let anyone fool you that well-crafted advocacy is possible without putting in serious time and effort. An impressive opening speech or the execution of a well-structured piece of cross-examination is only achieved as a result of very significant preparation.

First principles

Wondering where to start? My advice is to begin by amassing a comprehensive and detailed knowledge of the case – in particular, the pleadings, the relevant law and the evidence. This will allow an advocate to be fluent in their submissions and to have quick reactions to new and unforeseen developments at trial. Being very familiar with the statements of case, the evidence and key disclosure documents means the advocate can responded assuredly and quickly to questions and issues raised by the trial judge and react authoritatively to any unexpected events. A detailed knowledge of the case also breeds confidence. It allows the advocate to have some level of reassurance they will be able to deal with the surprises that have arisen.

Every stage counts

Preparing for trial is something that happens right across the litigation process. Every activity – from the preparation of pleadings to the case management conference (CMC) to the detailed preparation of evidence – is an important staging post. Effective case strategy must be informed from the outset by the fact that, if no settlement is achieved, the final stage of the litigation process will be an adversarial trial process with specific evidential requirements and processes and which is impacted by the litigation process that has gone before it. For example, orders made at the CMC will have a critical effect on the way the trial is conducted.

Of course, different considerations apply depending on whether the trial is to be heard in the IPEC or in the general Chancery Division of the High Court, as I’ll explain.

The IPEC in detail

The aim of the IPEC is to provide a procedure for IP litigation that is speedier and less costly than the usual High Court litigation route. For that reason, IPEC multitrack trials are limited to two days of Court time (or, exceptionally, three days).¹ Within this time limitation, the Court will, so far as appropriate, allocate equal time to the parties. As The Intellectual Property Enterprise Court Guide (the IPEC Guide) states, this will be the case “unless there is good reason not to”. (In contrast, in Chancery Division High Court trials there is no presumption that the parties will be given equal time by the Court.)

The IPEC multitrack procedure is also designed to safeguard parties from the risk of paying large sums in costs to the opposing party at the conclusion of the proceedings and incorporates a scaled costs cap. Costs awarded to the winning party at the conclusion of the liability proceedings will not exceed £60,000 (with some limited exceptions).

“A detailed knowledge of the case allows the advocate to have some level of reassurance they will be able to deal with the surprises that have arisen”

The IPEC Guide is a crucial resource to use when preparing for IPEC trials. Paragraph 3.2 sets out the main factors to be taken into account when deciding whether a matter is suitable for the IPEC. These include, for example, the financial resources of the parties, the overall complexity of the claim and the nature of the evidence in issue.

Generally, advocates and judges conducting proceedings in the IPEC are skilled at managing IPEC cases so that they fit into the time allowed. However, the parties involved must recognise that the case has to be managed in a way that is suitable to the IPEC. For example, parties cannot run every single possible argument. As stated by the Court in Rothy’s Inc v Giesswein Walkwaren AG: “When parties agree to take advantage of the IPEC costs cap, they thereby agree to fit their case within the IPEC case limits. They must therefore trim their sails to ensure that the case can be determined within the allocated time.”²

 IPEC CMC

The IPEC CMC is a particularly important trial preparation stage. As rule 63.23(1) of the Civil Procedure Rules (CPR) states: “At the first case management conference … the court will identify the issues and decide whether to make an order in accordance with paragraph 29.1 of Practice Direction 63.” Paragraph 29.1 of the Practice Direction sets out that the Court may order specific disclosure, a product or process description, experiments, witness statements, expert reports, cross-examination at trial and written submissions or skeleton arguments.

Paragraph 29.2 then goes on to make clear that the Court will make an order under paragraph 29.1 only: (a) in relation to specific and identified issues; and (b) if the Court is satisfied that the benefit of that further material in terms of its value in resolving those issues appears likely to justify the costs of producing and dealing with it.

In other words, the whole shape of the final trial is determined by what is ordered. Therefore, significant consideration needs to be given to what orders need to be sought at the CMC to allow the trial to be conducted in the manner that is most advantageous for your client.

It is also important to note that, as set out in CPR 63.23(2): “Save in exceptional circumstances the court will not permit a party to submit material in addition to that ordered under 63.23(1).” This issue arose in Kwikbolt Ltd v Airbus Operations Ltd.³ In that case, on the morning that a witness was to be cross-examined at trial, the cross-examining party served a bundle that included documents that had not formed part of the proceedings to date. The Court held: “[17] … litigants should be aware that in this court any party intending to rely on a cross-examination bundle should give the witness adequate notice of the bundle, which will normally be at least 48 hours, and should inform both the court and the opposing side of the exceptional reasons which justify the late introduction of new documents into the case.”

Trial skeleton

As trial time is limited, the IPEC trial skeleton argument is extremely important. It should be detailed and cover all of the points required. It is possible that the written skeleton argument may be the one and only opportunity to make submissions on certain points to the judge. Happily, the IPEC trial judge will be an IP specialist, which means that the skeleton can be written on the assumption of a detailed understanding of IP law.

Finally, it may be that the Court dispenses with oral openings entirely in order to save time. It is unusual to have any formal additional written closing document in the IPEC, as the closing oral submissions generally start straight after the giving of evidence is finished. However, in certain cases, written closings have been allowed. For example, in Redwood Tree Services Ltd v Apsey (t/a Redwood Tree Surgeons), the Court permitted the parties to file written submissions after the conclusion of trial to deal with a new issue that had arisen.⁴ As an advocate, you need to have considered carefully how best you want to present your written advocacy documents and whether you want to request any particular orders from the Court concerning those documents at the CMC.

High Court considerations

An important resource to consider when preparing for Chancery Division High Court trials is The Business and Property Courts of England & Wales Chancery Guide 2022 (the Chancery Guide). As it states at paragraph 12.13: “A time estimate for trial is usually fixed at a case management conference … and confirmed at any [pre-trial review] and when skeleton arguments are lodged. It is vital that the time estimates are kept under review and are updated (and the court informed) as soon as it becomes apparent that a change is required …” And at paragraph 12.14, the warning is reinforced: “Only in exceptional circumstances will a trial be permitted to continue beyond the period allocated to it at the time of listing …”

The message that comes across loud and clear is that careful thought must be given to the length of the trial – before, at and after the CMC. The trial time estimate is to include judicial pre-reading, and pre-reading estimates must be realistic.⁵ The most important factor to consider when estimating trial length is the amount of live evidence. Another point to have in mind is whether any of the witnesses will require translators, because the involvement of translators significantly increases the amount of time that evidence will take.

“Careful thought must be given to the length of the trial – before, at and after the CMC”

Further, if the trial is being heard in the Chancery Division of the High Court, the judge may not be a specialist in IP (unless it is being heard in the Patents Court). Pre-reading estimates should be adjusted accordingly. The fact that the trial judge may not be familiar with IP law will also influence the level of detail that should be included in opening and closing skeleton arguments.

In lengthy or complex trials, the Court expects the parties to provide written summaries of their closing submissions in advance of giving them (see paragraph 12.76, the Chancery Guide). Therefore, in such cases, there will need to be a break between evidence and oral closing submissions. The purpose of this break is to allow the advocate to prepare written closings and to give time for the trial judge to read those documents. This break should be included within the trial time estimate.

It is only in exceptional circumstances that a trial can be extended to run over its listed time. Therefore, when setting the trial estimate, it is advisable to err on the side of caution. In general, the Court will expect the parties to agree the trial time estimates (subject to final Court approval). However, if it is not possible for the parties to agree, the Court will determine the appropriate trial time estimate to be used.

Size matters

Advocates should be aware that there are strict page limits on the length of trial opening skeleton arguments (see paragraph 12.51, the Chancery Guide). In a normal case, opening skeleton arguments should not exceed 25 pages, and even in the most complex cases they should not exceed 50. This limit includes any appendices and schedules (using a minimum font size of 12 and a line spacing of 1.5).

Closing (and opening) thoughts

The usual course is that there should be an oral opening statement on behalf of the claimant, and there is provision for the other parties to make short opening statements as well. The purpose of oral openings is “… to explain the party’s case, on the key issues for trial, introduce the trial judge to the significant facts of the case, including any important documents, and to identify the points of contention expected to arise …” The trial timetable should set out the time allowed for these. These oral opening statements should, as far as possible, be uncontroversial and no longer than circumstances require (see paragraph 12.63, the Chancery Guide).

The usual course is that there should be an oral opening statement on behalf of the claimant, and there is provision for the other parties to make short opening statements as well. The purpose of oral openings is “… to explain the party’s case, on the key issues for trial, introduce the trial judge to the significant facts of the case, including any important documents, and to identify the points of contention expected to arise …” The trial timetable should set out the time allowed for these. These oral opening statements should, as far as possible, be uncontroversial and no longer than circumstances require (see paragraph 12.63, the Chancery Guide).

As stated at paragraph 12.75 of the Chancery Guide: “After the evidence is concluded, and unless the trial judge directs otherwise, oral closing submissions will be made on behalf of the claimant first, followed by the defendant(s) in the order in which they appear on the claim form, followed by a reply on behalf of the claimant.” It is likely that the trial judge may wish the parties to address the Court on specific issues in closing, and the judge will often raise points that require particular submissions in the course of the trial. Advocates should pay special attention to these: they will be the points that are particularly troubling the judge and therefore need to be carefully addressed. 

1. This article considers IPEC multitrack matters. There is a separate IPEC small claims track. 
2. [2020] EWHC 3391 (IPEC)
3. [2021] EWHC 732 (IPEC)
4. [2011] EWPCC 14
5. Please note that this article considers standard trials in the general Chancery List. Proceedings being dealt with under the Shorter Trial Scheme or Flexible Trial Scheme or in the Patents Court have particular procedures.

Iona Berkeley is a Barrister at 8 New Square and co-author of Kerly’s Law of Trade Marks and Trade Names
clerks@8newsquare.co.uk

Annalisa Grassano / Ikon Images.com