When any legal matter goes to hearing, it’s an emotional time. This is especially so in family provision claims; the parties are grieving a loved one and are emotionally and financially invested in the outcome. That’s why it’s important for you to know what to expect and what your solicitor’s responsibilities are.
So, what should you expect at hearing?
Your matter will have been set down for hearing over one or more days. The length depends on the number of witnesses and complexity of the issues. You need to expect to be in Court the whole time and should clear your schedule.
At the hearing, opening submissions will be made by Counsel for each party (the plaintiff’s Counsel goes first, then the defendant’s) and the matter will then move onto the evidence. The evidence in chief is given by affidavits prepared and sworn prior to hearing. There may be objections to the admissibility of this evidence; if so, Counsel will make submissions on this. The witnesses will then be called, one by one, to be cross-examined by opposing Counsel. Documentary evidence may be put before the Court during this process and witnesses may be re-examined on their evidence, however this doesn’t always occur. The judge may, at times, raise a question for the witness if there is something in evidence the judge feels needs further clarification; this can sometimes catch witnesses unaware.
Once all the evidence is before the Court, closing submissions will then be made by Counsel for each party. The judge will then hand down the decision, however this may not be on the same day. If the judge hasn’t determined who is to pay the costs of the proceedings, Counsel will be invited to make submissions on how the costs should be paid.
During the course of the hearing, settlement offers may be made. It is possible for the matter to settle before the hearing is concluded and the judge gives the decision. Your solicitor will keep you informed of any offer and advise you on its merits.
Your solicitor will have done a considerable amount of work in preparation for the hearing. It’s his/her responsibility to explain the process to you beforehand and prepare you for what to expect. You’ll usually meet with your solicitor and Counsel in the lead-up to the hearing to discuss the process, what to expect under cross-examination and the possible outcomes.
Your solicitor will have organised the appearance of witnesses who are to give evidence in support of your claim/defence and may arrange for them to meet with Counsel in preparation for the hearing. Both parties’ solicitors will have liaised over the preparation of the Court Book, which contains all the evidence the judge uses during the hearing.
By knowing what to expect, you will be better prepared for the stresses that accompany going to Court. Your solicitor will be there to guide you and is your best point of call for questions.
