Fast track

The fast track was introduced in April 1999, and has no previous history. Its intention is to provide a means by which middle-value claims can be determined reasonably quickly at a predictable cost not disproportionate to the sums at stake. As soon as the case is allocated to the fast track, the District Judge gives directions for its management. These include a timetable, a trial date or trial period no more than 30 weeks away, provision for the disclosure of documents and the exchange of witness statements, and (where possible) provision for a single expert witness. The court may also impose a timetable for the trial itself, to keep it as short as possible while still allowing justice to be done.

In disclosure (previously called "discovery"), each side tells the other about all relevant documents in its possession, whether favourable or unfavourable to its case, and must allow the other side to look at these documents unless there is a good legal reason (e.g. legal professional privilege or public interest immunity) why not. Each side also gives the other a written statement of the evidence to be given by each of its witnesses, so there should be no surprises at the trial.

Either party, but more often the claimant, may apply to the court for an interlocutory injunction requiring the other to act in a certain way pending the full trial. Such an injunction is not normally granted in cases where damages would be an adequate remedy, but may be appropriate where the applicant would suffer irretrievable damage, if the court considers it "just and convenient". The party seeking the injunction must normally give an undertaking to indemnify the other against any loss suffered in consequence if the final decision is against him.

Either side, but more often the defendant, may make a formal offer to settle and indicate to the other side just what he is prepared to offer. If the offer is accepted the case comes to an end; it it is rejected, the trial goes ahead without the judge (or jury) being aware of the offer. In that event, if the other party does worse at the trial than if he had accepted the offer, he is normally penalised by having to pay some or all of the offeror's costs.

Roache v News Group (1992) Times 23/11/92, CA An actor C claiming damages for libel refused to accept an offer of settlement (then called a payment into court) and proceeded to trial, where he won the amount offered together with an injunction against further publication. The trial judge held he was entitled to his costs, but in the Court of Appeal Sir Thomas Bingham MR said the claim for injunctive relief had not been a significant factor in the decision to continue: he could almost certainly have secured a corresponding undertaking as a condition of accepting the offer, and he was really hoping for a higher sum in damages. C was therefore ordered to pay both sides' costs from the date of the offer.

Throughout the pre-trial period the parties may continue to negotiate with the aim of reaching an out-of-court settlement. If a settlement is reached after proceedings have begun, the parties notify the court and the proceedings are stayed: where one party is a minor such a settlement needs the consent of the court. The possibility of settlement continues to exist even during the trial, and it is by no means unusual for counsel to return from a lunch break (having seen one another's witnesses in action) to inform the judge that he will not be troubled any further with this action.

The trial itself is normally completed in a single day. Opening statements may be dispensed with, and the claimant begins by calling witnesses. The witness statements already given to the defendant and the judge normally stand as evidence-in-chief, and the court may limit the time allowed for cross-examination by the defendant's counsel. When the claimant's case is complete – typically no more than an hour or two – the defendant's case is presented in a similar way. Counsel then put forward any legal arguments, and the judge normally gives his decision immediately the trial ends.

Multi-track Once the case is allocated to the multi-track, the court gives directions for its management, including either a timetable or (in more complicated cases) a date for a case management conference at which such a timetable can be fixed. In the past, the time between the start of formal proceedings and the start of the trial has been about 15 months in the County Court or 3 years in the High Court, but the new rules (which transfer responsibility for ensuring progress from the lawyers to the judge) should reduce this delay.

Directions for disclosure of documents and the exchange of witness statements are given, as on the fast track above, and the court will try to ensure that expert (and other) witnesses are no more than are necessary to resolve the issues fairly.
Most civil cases are tried by a judge sitting alone, who decides both questions of fact and questions of law. A jury may be used to decide questions of fact (including quantum of damages) if either party so requests in cases of libel, fraud or malicious prosecution, or in other cases where the judge thinks it appropriate, but the trend today is towards trial by a judge alone.

Ward v James [1965] 1 All ER 563, CA P was seriously injured in a road accident; D substantially admitted liability but contested the damages claimed. P sought trial by jury and appealed against the judge's refusal to exercise his discretion to allow this. A five-man Court of Appeal said trial with a jury should not be ordered in personal injury cases save in exceptional circumstances. When a man is on trial for serious crime, said Lord Denning MR, or when in a civil case a man's honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal. But in personal injury cases trial by jury has given place of late to trial by judge alone, the reason being simply this, that in these cases trial by a judge alone is more acceptable to the great majority of people. You know where you stand with a judge, and if he goes wrong, you can always go to the Court of Appeal. But as for a jury, you never know what they will do, and if they do go wrong, there is no putting them right.

H v Ministry of Defence [1991] 2 All ER 834, CA A soldier H lost most of his penis as a result of negligent treatment by army doctors; DD admitted liability, but on P's application Hutchinson J granted a jury trial on the question of damages. The Court of Appeal allowed DD's appeal and ordered that damages be assessed by a judge alone. Lord Donaldson MR said damages for personal injuries should in almost all cases be assessed by a judge because of the need to ensure comparability: this particular injury was a rare one, but a judge would be able to match it to the standard tariff much better than a jury. Obiter, a jury might be appropriate where the injuries were the result of abuse of authority and exemplary damages were claimed.

Griffiths v Williams (1995) Times 24/11/95, CA A woman P was awarded 50 000 damages for rape after a jury trial; the Crown Prosecution Service had declined to prosecute because there was no realistic prospect of a conviction. The Court of Appeal upheld both the verdict and the award of damages. Aitken v Preston (1997) Times 21/5/97, CA A politician P brought a libel action against the Guardian and Granada television, and (at P's request) Popplewell J ordered a non-jury trial. The Court of Appeal affirmed this order: the trial would involve the prolonged examination of documents, and that could not conveniently be done by a jury.

Lord Bingham CJ said P's prominent role in public life, the fact that the case involved issues of credibility and an attack on P's honour and integrity, and the importance in a democratic society of a free press, were factors weighing in favour of a jury trial. But the emphasis now was against jury trials, and a single judge would give a reasoned judgement for or against the claimant on each of the issues in dispute, whereas a jury would give only a general verdict perhaps leaving some doubt as to whether P or DD had been vindicated in relation to some issues.

At the trial, the claimant's lawyer opens the case and calls evidence; the claimant may give evidence herself if he wishes. Each witness's written statement (previously given to the other side and the judge) is entered as his evidence in chief, and he may be cross-examined by counsel for the defendant and re-examined to resolve any ambiguity. Counsel for the claimant then puts forward any arguments on points of law. Defending counsel then calls evidence in the same way, and puts forward any arguments on points of law, to which counsel for the claimant may reply. The judge normally gives his decision immediately, stating his findings of fact, ruling on points of law, announcing (where appropriate) the amount of damages to be awarded and making any orders as to the payment of costs.