People should dress smartly and follow the rules on representation, order of speaking and general conduct in court.
Members of the legal profession usually appear in open court in quite formal attire. Some courts are less formal, but as a general rule, a solicitor should wear a dark suit, a special collar and tie and a gown. A barrister will also wear a wig. In open court the judge usually also wears a gown and wig. However, gowns are not worn when the proceedings are held in the judge's room (chambers). If it is not clear who is who, the clerk to the court will be able to provide information.
Lay advocates should be dressed smartly but there is no need to wear a dark suit and there is no rule that women must wear a skirt. It is advisable to dress smartly to attend court. Although a lay advocate would probably not be refused admission to the court on the grounds of dress, some judges may be influenced by what they consider to be inappropriate dress and this could prejudice the client's case.
Arriving at court before the hearing
On arrival at court, the adviser should immediately inform the usher and give the name of the client that they are representing. A list of all the cases to be heard that day will be displayed on the wall outside the courtroom or in the waiting room.
Unless an amount of time for the hearing has been directed by the judge, it is likely that a short time, for example five minutes, will have been set aside for each case. This is usually the case for possession hearings.
The court papers will usually state a time for the hearing. However, other cases may also have been listed for that time. The cases will often be listed in the order that they will be heard, with the claimant or applicant's name first and the defendant or respondent's name second.
It is therefore quite common, for example, for a case listed at 10am to be heard at a much later time and the parties and their representatives will have to wait at the court until they are heard. However, if there are good reasons to change the order of the list, the judge will often allow this, for example if one of the parties needs to return to work in the afternoon and no-one else objects, or if an adviser needs more time to advise the client.
Beginning the proceedings
The person representing the claimant will be invited by the judge to state their case first. Only witnesses, if called, will be required to take an oath or affirmation. Interpreters will also have to swear an oath that they will interpret correctly.
Having heard the case for the claimant, the representative of the defendant/respondent will be asked by the judge to address the court. The representative must not speak until the judge invites them to do so. If the defendant is going to make an application, for example, for an adjournment, the claimant's representative should be informed of this and they will inform the judge who will allow the defendant to speak first. Representatives must always stand up when speaking in open court.
If the representative is unknown to the judge, they should state their:
role in the proceedings.
Lay representatives do not have automatic rights of audience. If the other side objects or the judge disapproves, they may be refused permission, in which case the client will have to speak. Practice in different courts varies, and advisers should contact their local court where the court clerk will be able to advise as to whether lay representation is likely to be allowed. Judges cannot refuse to allow a McKenzie friend to assist a client.
Addressing the court
When addressing the court, it is important to talk slowly and clearly and give the judge and the other party time to take notes. It is also important not to interrupt either the judge or the representative for the other side, even if they appear to be either misunderstanding what has been said or misleading the court.
There will always be a chance to reply or contest what the other side has said. It is advisable to take notes of what is said by the judge, other representatives and witnesses during the proceedings.
If the representative wishes to speak but it is not clear whether it is their turn to speak, then the best course of action is to stand up (if in open court). If the judge does not invite the representative to speak, start the question with the phrase 'with your permission'. If the judge is not ready to continue, they will say so.
Once both sides of the case have been put to the judge, they can:
make an order, for example for possession, or
adjourn the proceedings to a later specified date, or
strike out or dismiss the case.
Once an order has been made, the parties cannot make any further arguments about the case. If the adviser feels that the case has been wrongly decided, the only course available to them will be to appeal against the decision. It is necessary to apply for permission to appeal, and if appropriate the representative can do this immediately. If permission is refused an application can be made by following a specified process.
Possession hearings usually last about five minutes. If the judge needs more time to consider the arguments and evidence they will adjourn the proceedings to a later date, where more time will be allocated to the hearing.
Last updated: 10 February 2021