As a litigator and advocate, I have the luxury of wearing two hats (or at least I can wear one hat with the other hat in mind). This is relevant because the practicalities and realism of preparing for trial will never be as effective until one has had to conduct a trial.
Of course, I believe every litigator would benefit from advocacy experience. However, many may not have this opportunity or desire it. Instead, this is a brief guide to help you refine your preparations for a fast-track trial.
I have prepared instructions to counsel to attend fast track trial numerous times in my litigation past, and now I have been instructed to appear at a fast track trials myself that I can now suitably offer tips and tricks for practitioners preparing for a fast track trial.
Preparing N260s for trial, where needed
In the not so distant future, when a litigator is getting ready for their client’s trial and the accident happened on or after 1st October 2023, there will only be fixed costs, except in rare cases, such as contractual terms. This also applies to Part 36, consequences and penalties for unreasonable behaviour.
However, a claim for personal injury where the cause of action takes place before 1st October 2023 (and is allocated to the Fast Track) will be subject to fixed costs, but there are two circumstances where the standard costs will apply:-
- Claimant beats their Part 36 offer and will be entitled to indemnity costs from the date of the expiration of the relevant period.
- Where Part 45.29J applies and the Claimant is allowed to claim costs on a standard basis.
You would be surprised how often I am instructed to pursue Part 36 consequences if the Claimant beats their Part 36 offer, but not provide an N260 to claim the indemnity costs. In some cases, there has been a very early listing of trial (triggering the post-listing, pre-trial fixed costs) and this allows a Claimant to claim the full fixed costs plus indemnity costs on top.
N260s can be prepared in-house or even by the fee earners if the firm/client cannot justify the cost of outsourcing the tasks to a costs firm. The only caveat is you must ensure that you only include costs for work that your firm has undertaken and that your client would be liable for.
Whilst there is nothing to stop an advocate from seeking the 10% uplift on damages and interest on the damages, without an N260 the advocate cannot seek indemnity costs. If there is more than one Part 36, then an N260 should be prepared for each one. It might be a case where fixed costs do not apply. In that circumstance, ensure you have more than one N260 to assist the Court in determining costs up to the date of the expiration of the relevant period and then a second that can be used to measure the remaining costs on an indemnity basis if need be.
Don’t include documents you dont need to
I was also guilty of this as a litigator. Having a trial bundle spread over two lever-arch folders is not something that the Court wants to have to navigate when only 10-20% of the documents are referred to.
The largest contributor to an unnecessarily large trial bundle is the duplications of documents. I have once received a trial bundle in the region of 500 pages. The medical reports were attached to the Particulars of Claim, separately under the heading of expert evidence and attached the witness statement. There was no need to annex it to the witness statement, the Court had given the Claimant permission to rely on it in the directions Order. Only the Particulars of Claim themselves needed to be in the bundle (not the attachments) and with four medical reports, the size of the bundle would have been significantly reduced with only one copy of the medical reports.
Parties may ask for documents that had been disclosed to be included in the trial bundle. These documents can and are likely to be annexed to the witness statement, so there is no need to add them separately in teh bundle. Yet many practitioners do.
The other point to consider is not everything that has been ‘disclosed’ and provided to the other side for ‘inspection’ must go in a bundle unless either party wish for it to be included, and it has been appropriately evidenced (see this post for more information on this point),
Get your client to read their statement and tne medical reports
I often meet the client on the day of the trial. If allowed, I call them the day before the trial and ask if they have recently read their witness statement. Most of the time, the client has not, so I give them the chance to refresh their memory if necessary. It also allows them to identify any issues.
In personal injury claims, it’s surprising how often a client will say they haven’t read the report that was sent to them before the claim was issued, or worse, they think they’ve never seen it before. The latter is more likely due to the passage of time, but this is something that should be addressed in the weeks leading up to the trial. If the client can’t recall seeing the report, it can be sent to the authority approving the report, giving them an opportunity to become familiar with the facts presented to them.
It is not helpful for a client to re-review their statement the day of the trial.
Give your client a realistic expectation of trial
Clients usually have an incorrect expectation of what the trial will be like. I have spoken to some clients at the conferences, and it has become clear rather quickly that they were under the impression that they were not giving evidence. This meant they were not mentally prepared and those clients usually fall apart in the witness box.
I recall years ago overhearing fellow colleagues telling their clients “you won’t be in a court room, it will be a small room called Judge’s chambers” and “the Judge needs to decide how much compensation you will get (even when liability is disputed)” and worst of all “you need to be there, but you won’t need to do much”.
It is so important that you explain and manage their expectation. Whilst they will no doubt be nervous and worried, I can assure you that a client finding out on the day of trial what will happen is far worse. If you don’t know what happens at a trial, ask your employer to watcha trial, go to your local Court and ask to sit in the public gallery or watch this mock trial from 9 SJS Chamber, which shows the basic concept of a fast track trial.
Prepare a comprehensive brief
You have been running the case for some time and know the matter well, but sometimes, the content of the relevant not provide a full picture, especially when documents, such as witness statements, quite often lack the key points. The best briefs explain points that are not in evidence but will be useful for the trial advocate to know so they can look to shape their trial plan accordingly.
Get your papers/brief sent early
I understand that in a fixed cost regime, the inclination to submit papers early diminishes, and getting counsel involved early on is not uncommon in fast track trials. However, quite often there will be an issue that is not identified until a few days before trial and that leaves very little opportunity to deal with said issue.
See if the person you are instructing can either review the papers after exchanging evidence (possibly for a fixed fee) or ensure that papers are sent promptly so they can identify any issues.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.