[LEM20]

Hi all,

As part of my legal training, I'm instructed (as part of a mock trial) to represent the Defendant in a Road Traffic Accident Claim.

The claim involves two vehicles which collided as the Claimant's vehicle was attempting to reverse into a cul-de-sac. The Claimant's case is as follows: their friend had crossed over the road and stood on the pavement to warn any oncoming vehicles not to proceed until the reverse was completed. The Defendant, allegedly, ignored these signals and collided with the nearside of the Claimant's vehicle.

The Defendant states that the friend had been signalling to the Claimant's car to stop, and signalling to him to continue his drive.

This will be the first time I've ever attempted an RTA Claim, and I'm not sure which legislation/points of law I should be relying on. Does anyone have any advice?

[Crazy Jamie]

This doesn't sound to me like a case where legal argument would be particularly prevalent, or at least it wouldn't be if this case was actually before a court. Which makes sense, because you say it is a mock trial rather than mooting.

Legally this is straightforward. All road users have a basic duty of care to other road users and must drive with reasonable care and skill. The Claimant's argument will be that the Defendant was negligent in not heeding the warnings of the Claimant's friend and/or failing to notice/avoid the Claimant's vehicle. The Defendant will say that the Claimant was negligent in not heeding the presence of his vehicle when performing the manoeuvre. It's up to you to formulate your argument on the facts and run your case accordingly.

I had actually prepared a reasonably lengthy post detailing the various relevant factual issues and potential strengths and weaknesses of your case. Suffice to say that there are a number of relevant areas and issues where either case could rise or fall. But on reflection I didn't think it would be appropriate for me to tell you how to run your case. The whole point of the exercise is surely that you decide how to do that yourself.

My one piece of advice would be not to get bogged down with what is a very law student notion of winning every case using legislation and case law. I have run countless trials dealing with minor RTA incidents like this one and don't recall ever having to refer to case law or legislation. For me the issues here are factual. Identify the relevant factual issues, formulate your case theory, and then plan your cross examination accordingly. This does not appear to be an exercise aimed at testing your knowledge of the law and then applying it; it seems to be an exercise in whether or not you can practically run a trial, which is a completely different skill set.

[InnerTemple]

(Original post by LEM20)
Hi all,

As part of my legal training, I'm instructed (as part of a mock trial) to represent the Defendant in a Road Traffic Accident Claim.

The claim involves two vehicles which collided as the Claimant's vehicle was attempting to reverse into a cul-de-sac. The Claimant's case is as follows: their friend had crossed over the road and stood on the pavement to warn any oncoming vehicles not to proceed until the reverse was completed. The Defendant, allegedly, ignored these signals and collided with the nearside of the Claimant's vehicle.

The Defendant states that the friend had been signalling to the Claimant's car to stop, and signalling to him to continue his drive.

This will be the first time I've ever attempted an RTA Claim, and I'm not sure which legislation/points of law I should be relying on. Does anyone have any advice?

What stage of training are you at?

In any event the above post is good advice. Having read the case, get your case theory sorted. Plan what you want to be putting to the court (i.e. your closing speech). With this in mind, decide upon how you are going to deal with the witnesses both in cross and in chief (this is civil stuff so no XIC as such but you can ask further questions if needed).

Also take time to consider where your case is weak and whether you can deal with this somehow - can you insulate your witnesses/case from the arguments that the other side are likely to advance?

Go to the court, win the case then head to the pub. Bish bash bosh.

[LEM20]

(Original post by Crazy Jamie)
This doesn't sound to me like a case where and case law. I have run countless trials dealing with minor RTA incidents like this one and don't recall ever having to refer to case law or legislation. For me the issues here are factual. Identify the relevant factual issues, formulate your case theory, and then plan your cross examination accordingly. This does not appear to be an exercise aimed at testing your knowledge of the law and then applying it; it seems to be an exercise in whether or not you can practically run a trial, which is a completely different skill set.

Thank you very much for that.

I've formulated my case theory, planned my cross-examination and secured a firm grasp of all the necessary factual issues. I'm now drafting my closing speech, where I will need to consider issues relating to duty of care, negligence, causation and liability.

Is there anywhere (preferably online) that I can locate a basic outline of the relevant legal principles that can be used to draw conclusions in my client's favour?

[nulli tertius]

(Original post by LEM20)
Thank you very much for that.

I've formulated my case theory, planned my cross-examination and secured a firm grasp of all the necessary factual issues. I'm now drafting my closing speech, where I will need to consider issues relating to duty of care, negligence, causation and liability.

Is there anywhere (preferably online) that I can locate a basic outline of the relevant legal principles that can be used to draw conclusions in my client's favour?

If this is a mock trial, I will guarantee that one of your witnesses either won't come up to proof or will make damaging admissions in cross-examination and funnily enough, so will the other fella's.

[Crazy Jamie]

(Original post by LEM20)
I'm now drafting my closing speech, where I will need to consider issues relating to duty of care, negligence, causation and liability.

Liability encompasses the other three you've mentioned. Just remember that this is not a legal argument. If you're going to go over the relevant (very basic) law, do it quickly and efficiently.

Is there anywhere (preferably online) that I can locate a basic outline of the relevant legal principles that can be used to draw conclusions in my client's favour?

I repeat; this is not a case that you're going to win on the basis of legal principles. The only relevant legal principle is duty/standard of care for drivers. You then make factual arguments on whether or not certain actions of either party either did or did not reach that standard of care. If it becomes clear that both parties may share a portion of the blame depending on the evidence, then you will have to adapt to that as it happens and make appropriate submissions.

[LEM20]

(Original post by Crazy Jamie)
Liability encompasses the other three you've mentioned. Just remember that this is not a legal argument. If you're going to go over the relevant (very basic) law, do it quickly and efficiently.
I repeat; this is not a case that you're going to win on the basis of legal principles. The only relevant legal principle is duty/standard of care for drivers. You then make factual arguments on whether or not certain actions of either party either did or did not reach that standard of care. If it becomes clear that both parties may share a portion of the blame depending on the evidence, then you will have to adapt to that as it happens and make appropriate submissions.

Noted.

One final question....

As the Defendant in an RTA claim, what costs am I able to recover? (I think I know the answer, but I wanted to double check....I'm used to representing the Claimant so it's a little confusing).

Thank you again for all your help.

[Crazy Jamie]

(Original post by LEM20)
Noted.

One final question....

As the Defendant in an RTA claim, what costs am I able to recover? (I think I know the answer, but I wanted to double check....I'm used to representing the Claimant so it's a little confusing).

Thank you again for all your help.

If it's a fast track claim, normal cost rules apply. In other words, the default position is that if you win the Claimant will pay your costs.

However, I suspect it is simply a small claim. If that is the case, then as the Defendant you recover no costs by default. If you have brought a counterclaim, you recover the counter claim issue fee. If you have witnesses and win, you will be entitled to recover witness expenses regardless (e.g. loss of earnings due to attending court, mileage for travel to and from court, parking and so on).

The main exception to the above rule is if the Claimant as acted unreasonably in some way, either in bringing the claim or by way of conduct during proceedings. If that is found then the court has discretion to award costs outside of the normal fixed costs regime. In a mock trial scenario that is highly unlikely to become relevant, though.

[LEM20]

(Original post by Crazy Jamie)
The main exception to the above rule is if the Claimant as acted unreasonably in some way, either in bringing the claim or by way of conduct during proceedings. If that is found then the court has discretion to award costs outside of the normal fixed costs regime. In a mock trial scenario that is highly unlikely to become relevant, though.

Yes, it is a small claim.

I've been given a Statement of Costs by my instructing solicitors (totalling £2,722.48). This sum is made up of Counsel's fee (plus VAT), attendances on opponents, attendances on others, "other work not covered above," (not sure what that relates to), and work done on documents. Two fee earners are quoted; one is Grade A at £300.00 per hour, and the other is Grade B.

I suppose I will have the opportunity to add my client's costs of travel etc after conducting a pre-trial conference with him. As to the rest, I'm guessing I will have to argue unreasonable behaviour from the other side....

[Crazy Jamie]

(Original post by LEM20)
Yes, it is a small claim.

I've been given a Statement of Costs by my instructing solicitors (totalling £2,722.48). This sum is made up of Counsel's fee (plus VAT), attendances on opponents, attendances on others, "other work not covered above," (not sure what that relates to), and work done on documents. Two fee earners are quoted; one is Grade A at £300.00 per hour, and the other is Grade B.

I suppose I will have the opportunity to add my client's costs of travel etc after conducting a pre-trial conference with him. As to the rest, I'm guessing I will have to argue unreasonable behaviour from the other side....

In practice it is usually unwise to do that without instructions, unless something blindingly obvious arises during the trial (such as the other side popping up at trial with some evidence that they haven't served on you). It's not the sort of submission that you throw out as a matter of course. In a balanced trial, which it seems that you will have here, it is highly unlikely that it would be an appropriate submission to argue unreasonable behaviour.

Of course, if for whatever reason it becomes appropriate, that costs schedule throws up issues in its own right. You're fighting a losing battle trying to justify the involvement of Grade A and B fee earners in a small claim, for example.

[LEM20]

(Original post by Crazy Jamie)
Of course, if for whatever reason it becomes appropriate, that costs schedule throws up issues in its own right. You're fighting a losing battle trying to justify the involvement of Grade A and B fee earners in a small claim, for example.

Whatever happens though (and in light of the fact that this is a mock trial) I need to fight my client's corner as robustly as I can, and that means requesting the (admittedly excessive) costs sought.

Another problem which may arise is this: my instructions also contain a witness statement from the Defendant's wife, who was sitting in the passenger seat at the time of the incident. Her statement has not been served on the other side, and I am asked to make sure that the Judge considers it at trial.

[nulli tertius]

(Original post by LEM20)

Another problem which may arise is this: my instructions also contain a witness statement from the Defendant's wife, who was sitting in the passenger seat at the time of the incident. Her statement has not been served on the other side, and I am asked to make sure that the Judge considers it at trial.

You should never be in that position.

"Miss LEM when did you receive these papers?

When did you have the opportunity of reading them?

Why didn't you ask your instructing solicitor immediately to serve a copy of the statement on the Claimant?"

To get this statement in, you have to accept (unless the brief was only considered the night before) that the failure to serve is yours and then explain why your lay client should not be expected to suffer for it.

[LEM20]

(Original post by nulli tertius)
You should never be in that position.

"Miss LEM when did you receive these papers?

When did you have the opportunity of reading them?

Why didn't you ask your instructing solicitor immediately to serve a copy of the statement on the Claimant?"

To get this statement in, you have to accept (unless the brief was only considered the night before) that the failure to serve is yours and then explain why your lay client should not be expected to suffer for it.

Ah, urgent question! (It's tomorrow!)

I have a road map in my bundle, and I'd like to refer the Claimant's witnesses to this map during cross-examination. Do I need to ask the Judge for permission to make this map an exhibit, or comply with any other formalities?

[nulli tertius]

(Original post by LEM20)
Ah, urgent question! (It's tomorrow!)

I have a road map in my bundle, and I'd like to refer the Claimant's witnesses to this map during cross-examination. Do I need to ask the Judge for permission to make this map an exhibit, or comply with any other formalities?

This is probably too late for you. However, you try and agree it with your opposite number and then tell the judge that there is an agreed map. I am assuming this is not an OS map which the judge will take judicial notice of. Ensure there are plenty of copies for all trial participants.

[Crazy Jamie]

(Original post by nulli tertius)
This is probably too late for you. However, you try and agree it with your opposite number and then tell the judge that there is an agreed map. I am assuming this is not an OS map which the judge will take judicial notice of. Ensure there are plenty of copies for all trial participants.

Indeed; whilst fast track trials will usually require the formality of the document either being exhibited by a witness or being in the trial bundle, small claims hearings are always more informal. As such if there is a document flying around that is clearly going to have some to it, such as a map or pictures of where the accident happened, they are likely to be used irrespective. Clearly it helps to discuss that with your opponent first and to have amble copies. It's also a good idea for the Claimant's representative to then refer the Judge to that document in opening so that s/he knows of its existence early on.

Best of luck. Let us know how it goes.

[sammathew]

It includes number of factors like your driving speed. If you are not familiar about the legal terms and procedure, consider hiring an accident lawyer, who can help you in getting your insurance amount.