Judge's role in civil case

Civil cases involve hearings in open court which the public may attend; hearings in the judge's private room from which the public are excluded; and matters decided by the judge in private but on the basis of the papers alone, without any attendances by the parties or their legal representatives

A judge hearing a civil case

Before trying a civil case the judge reads the relevant case papers and becomes familiar with their details.

The vast majority of civil cases tried in court do not have a jury - libel and slander trials are the main exception - and the judge hears them on his own, deciding them by finding facts, applying the relevant law to them - and there may be considerable argument about what that law actually is -and then giving a reasoned judgment.

Judges also play an active role in managing civil cases once they have started, helping to ensure they proceed as quickly and efficiently as possible.

This includes:

  • encouraging the parties to co-operate with each other in the conduct of the case;
  • helping the parties to settle the case;
  • encouraging the parties to use an alternative dispute resolution procedure if appropriate and;
  • controlling the progress of the case.

Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear any live evidence. The issues may concern the law to be applied or the terms of the judgment to be given. But more often than not, written and live evidence will be given by the parties and their witnesses and the live witnesses may be cross-examined. The judge ensures that all parties involved are given the opportunity to have their case presented and considered as fully and fairly as possible. During the case the judge will ask questions on any point he feels requires clarification, or which he feels is relevant and will help with his decision but has not been covered. The judge also decides on all matters of procedure which may arise during a hearing.

Once the judge has heard the evidence from all parties involved and any submissions (representations) they wish to put forward, he delivers his judgment. This may be immediately, or if the case is complicated, the judgment may be given at a later date.

Civil judges do have the power to punish parties if, for example, they are in contempt of court but, generally, civil cases do not involve the imposition of any punishment on anyone. The claimant - the person who has brought the case to court - will have asked for some form of relief against the defendant. This will more often than be damages to compensate them for the losses they say have suffered as a result of the defendant's actions. Then, if the judge decides that the claimant is entitled to damages, he will have to go on to decide the amount. Or the claimant may have asked for an injunction - for example, to forbid the defendant from making excessive noise by playing the drums in the flat upstairs in the early hours of the morning, or a declaration - an order specifying the precise boundary between two properties about which the parties had never been able to agree. The task of the judge to is to decide on what is the appropriate remedy, if any, and on the precise terms of it.

And then, when the judgment in the case has been delivered and the result is known, the judge must deal with the cost of the case - like the fees of lawyers (if they have been involved), the court fees paid out by the parties, the fees of expert witnesses, the allowances that may be allowed to litigants who have acted in person (without lawyers), and the earnings lost and travelling and other expenses incurred by the parties and their witnesses in getting to and from court and in preparing for the case. Whilst the general rule is that the unsuccessful party will have to pay the successful party's costs, the judge has a wide discretion to depart from this rule. The judge's decision on this part of the case will be highly crucial to the parties. He may decide, for example, that the unsuccessful party should pay only a proportion of the successful party's costs or that each party should bear their own costs. Who, in reality has been successful and unsuccessful? What is the fair order for costs to make? And precisely how much should these costs amount to? Questions for the judge to hear forceful representations about and to answer at the end of the case.

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