A civil procedure assignment answering who addresses the court first in closing speeches.
QUESTION
WHO ADDRESSES THE COURT FIRST IN CLOSING SPEECH AND WHY?
Addresses to the court/speeches in Sierra Leone are specifically provided for in Order 41 rule 4 of the High Court Rules Constitutional Instrument No. 8 of 2007. The rule in the order above is further explained in the English Supreme Court Practice 1999 in its order 35.
Parties to civil proceedings after evidence has been closed could address the Judge before whom the matter was tried unless he says otherwise<sup></sup>. Closing speech/argument will look back at the trial itself assessing its strengths and weaknesses, and reviewing whether the parties have proved the cases they described way back at the beginning. The other party (or counsel for that party, if represented) ought to have carefully taken notes (or obtain a transcript) of the remarks and point out to the Court (A judge and or jury, depending on the nature of the trial) during closing argument, how his opponent had failed to fulfill his argument. The Rules provide that after a party may have replied to another’s closing speech there may be a further speech in reply with leave of the court but only if fresh issues were raised and limited to the extent to that point of law or authority<sup></sup>. As the word “speech’ implies one has to make oratory representations but this would not always be the case.
The court may order that such closing speech be done in writing in matters of applications; where that is the case, the court may fix a deadline for filing and serving of such speech on counsel on the other side. After such submissions (speeches and a reply) the judge may proceed to give judgment as was in the case of SLEEMAN V HIGH CARE LTD (1999). The rule goes further to state that it applies to speeches in support or opposition to be followed by a written judgment.
Solicitors have a general right to address the court as was held in the case of RE MACAULAY ALR SL 1960 -61 but the judge can also with due decide who does his closing speech first. The default position is that if the decides not to give evidence the may at the close of his case deliver “his closing speech after which the defendant may make his closing speech in reply”.If however, the defendant adduces evidence he may after evidence has been led (examination in chief, cross examination, re-examination) give closing speech and the plaintiff may make his own closing speech in reply.
As is the case for some civil litigation, where there are 2 or more defendants who appear or are represented separately depending on whether they decide to or not to give evidence would determine the order in which they address the court in a closing speech. If none of the defendants choose not to admit evidence then they would give closing speech after the plaintiff in the order in which their names appear in the record (1st defendant replied first, 2nd defendant replies second and so on). If as is mostly the case, they (defendants) decide to give evidence, they would give closing speeches after evidence would have been led and their closing speeches would be “made in that order after the evidence of all the defendants has been given”.
In a situation where some decide to adduce evidence and others do not, those that adduced evidence, would first give their closing speeches in the order in which evidence of all the defendants has been given. On the other hand those who decide not to would give after the plaintiff would give their closing speeches in the order in which their names appear in the record. For matters where the is on the defendant<sup></sup> (the defendant has to prove its case) references above to sub rule (3), (4) and (5) would have effective but substituting plaintiff for defendant and verse vasa.
Parties give closing speeches in the above manner and respond as stated because “speeches usually deal with how the evidence that has been adduced and the inferences that can be drawn from that evidence support the case for the party in question on the factual issues involved”. It would appear that the last word is preserved as a right to the defendant who elects to adduce no evidence notwithstanding that he may have put in a document in the course of cross examination of the plaintiff’s witness.
In the Sierra Leonean case of NGOBEH V BANYA and OTHERS cc. 546/2003 Justice Showers allowed a viva voca application by counsel for the plaintiff to address the court even though it was counsel for the defendant whose (because he had adduced) “right” it was. In the consideration of the judge, the absent of the defence was the operative reason for granting such an application despite court room convention. This is to illustrate that the rules stated above are mere guidelines and the judge can decide who goes first depending on the circumstances of the case.
Order 41 rule 4(1) of the High Court Rules 2007 Order 41 rule 4(7)
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Order 41 rule 4 (8)
The Times, 3 November 1999 Order 41 rule 4 (3)
Order 41 rule 4 (4)
Order 41 rule 4 (5)(b)
Order 41 rule 4 (6)
Blackstone’s Civil Practice 2008 editor-in-chief His Honour Judge William Rose Oxford University Press 2007, ISBN 978–0–19–923148–5 Page790 59.79 reported in 3.
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