Members of the jury, you will well and truly try the issues in this case and true answers give according to the evidence. Please say: So help me God.

Members of the jury, do you solemnly, sincerely and truly affirm and declare that you will well and truly try the issues in this case and true answers give according to the evidence. Please say: I do.

Members of the jury, as you have heard this case is estimated to last somewhere between [........] and [........] days. The court will normally sit between 10 am and 4 pm with an hour for lunch and a break during the morning. At the first adjournment or the first opportunity you get, will you please select one of your members to be foreman or forewoman. That person will sit at the end of the row closest to the bench and will be your means of communication to the court and will be the person who will deliver your verdict in due course. You are at liberty to change your foreman or forewoman during the trial if you wish.

Very shortly, Mr or Ms [........], the barrister who appears for the plaintiff, will open [his or her] client’s case to you, and in that opening address, I anticipate that [he or she] will tell you what the case is all about. It is the function of the plaintiff’s counsel to do that and I do not intend to do so now. One thing [he or she] will tell you, and I will tell you now, is that in this case you are the judges of the facts and you are the sole and only judges of the facts. However, it is probable that during the case various questions of law will arise and also questions will arise as to whether certain evidence is admissible. The admissibility of evidence and questions of law are my responsibility and you are bound by the rulings which I give. Having said that, I remind you once again that you and you alone are the judges of the facts.

Because I am responsible for determining the admissibility of evidence and questions of law, it may, and probably will, be the case that during the evidence I will have to rule on these matters and if that arises do not be surprised if at times you are asked to leave the court while I do so. The reason for that is so that counsel can expand on their arguments without the risk of you being embarrassed by having material placed before you which should not be placed before you because it is not admissible. In due course, if the evidence is admissible you will hear it and act on it if you consider it reliable and appropriate, but if it is not admissible you will not hear it.

You must confine your considerations of the case to the evidence presented here in court during the trial, and put out of your minds anything you may have heard, or read, or seen on television about this or any other case or about any of the parties in the case. That is only fair to the parties, so that they may be aware of the case sought to be made against them and be in a position to deal with it if they can. You must not attempt to conduct any independent research of your own such as reading past newspaper reports, accessing the Internet, accessing legal databases, or earlier decisions of the courts, or visiting any locations referred to in the evidence.

At the end of the day, you will be excused and go home to your families and friends who will probably ask you what you have been doing. By all means tell them you have been sitting on a jury in a civil case but do not tell them any more please, because one of your duties is not to discuss the case with anyone outside the other three members of the jury. You are the persons who have been sworn to try the case, not members of your families or friends, and it is your decision we want and not the decision, indirectly or subconsciously, of members of your families. You will also be free during the lunch hour to make your own arrangements.

When you are leaving the court, returning to court, or around the precincts of the court building, be careful not to speak to anyone because it may be that they are people associated with the case; you might be chatting to someone and find out half an hour later he or she is a witness in the case, and that would be most undesirable and result in the case being stopped and started again with another jury, which would be a great waste of time and cost to the parties involved. Do not speak to anyone about the case except the other members of the jury, and please bear in mind those other matters I have mentioned to you.

Ladies and gentlemen, in this action the plaintiff [........] sues the defendant [........] claiming damages for [........] which he claims to have suffered on or about [........] when it is alleged [........] .

You have heard the evidence, and the addresses of counsel are complete. It is now my responsibility to sum up or, in other words, give you the directions of law which are appropriate, and to summarise the evidence for you so that you may then retire and consider your verdict (or your answers to the questions which have been posed for your consideration).

Let me first say something about our respective functions in these proceedings. You have been brought here as the jury to try this case because our system of justice provides that in certain types of cases, of which this is one, the facts of the case are to be decided by a jury of our citizens. Mr or Ms [........] is a citizen; he or she brings his or her case against [........] another citizen [which in this case is a limited company, a form of legal personality] and so four other citizens are brought to the court to try the issues of fact between them in accordance with the principles of law which I am about to give you.

As I say, you are the judges of the facts of the case and you are the only judges of the facts. My function is quite different. You have seen during the case that I have ruled on questions of evidence and I am responsible for the law in the case. It is now my function to tell you what the law is so that you can apply the law to your deliberations in deciding the facts. You are bound by my directions of law, but, as I say, the facts are entirely a matter for you and, if in the course of this summing up, I express any view or opinion of the facts, or if you think I have expressed a view as to the facts, then it is your duty to disregard such a view or opinion of mine unless you, independently, come to the same conclusion.

Now in the course of this summing up I will, for your assistance, remind you of what appears to be the important parts of the evidence, but I certainly will not read all the evidence to you; and you may take a different view to the view that I take as to what parts of the evidence are important and what parts of it are not quite so important. Well as you are the judges of the facts it is your responsibility to decide on the evidence that you have heard and on those parts of the evidence you consider relevant or important. The fact that I only read or summarise parts of it to you does not limit you in any way to those parts.

In deciding the facts, it is for you, the judges of the facts, to decide which witnesses you accept and witnesses if any you do not accept; and the situation may arise if it seems proper to you, that you accept some parts of the evidence of a witness and don’t accept other parts of the evidence of the same witness. The acceptance of witnesses and the determination of which parts of the evidence you accept is a matter for you as judges of the facts based on your assessment of the various witnesses.

In assessing a witness you have to decide whether the witness is firstly truthful, secondly reliable. You see there are two aspects of a witness giving evidence and your assessment of that witness. Firstly, is the witness honest? Is he or she trying to tell the truth as best he or she can recall? That is a question of honesty or truthfulness. The second aspect is whether the witness is reliable, because a witness may be perfectly honest and trying to tell the truth as best he or she can, but the witness may not be reliable because it is a long time ago and his or her memory may not be so good, he or she may have subconsciously reconstructed matters in his or her own mind in the meantime (there may be situations where the witness’s opportunity to observe what had happened has not been good) and there may be other reasons why the witness is inaccurate or confused.

So there are two matters to be considered; firstly, whether the witness is truthful and, secondly, reliable. You have seen the witnesses, the manner in which they gave their evidence; the way they answered the questions that were put to them, particularly in cross-examination; whether they hedged, appeared to be frank, or whether there was any pause before they gave their evidence; whether they changed their evidence at any stage, and whether their memory appears reliable; whether their answers are consistent or inconsistent with other parts of their evidence or with the evidence of other witnesses. It is also proper to take into account whether the witnesses, or any of them, have any reason for not telling the truth.

Of course, in relation to memory, you will consider whether there are things that the witness would be expected to remember. Some events in our own lives are more important than others and whilst we might be able to remember some matters quite clearly, there will be other things, particularly things that happened some time ago, and matters of detail, that we do not remember so clearly, and you may feel that a witness would be likely to have the same problem, particularly if the witness is an honest witness.

You may also take into account whether the answers given by a witness are consistent with other evidence given by the same witness or consistent with evidence given by other witnesses. In considering the witness’s reliability, you should consider, as I have said, the opportunity that the witness had to observe the event of which the witness gives evidence, its possible similarity to other events and the possibility of reconstruction or suggestion by others (including whether any notes were made at the time or shortly after).

Generally witnesses can only give evidence of what they saw, what they did or what they heard, and are not allowed to express opinions, but there is a special category of witness, called “expert witnesses” who, because of their specialised knowledge, training and experience are permitted to express opinions on matters within their areas of expertise, and I refer to the witnesses such as [........] and [........].

Well, where there is a conflict between what the expert witnesses have said, well then, it’s for you to weigh up the opinions that those experts have given, taking into account their respective qualifications as have been given to you in the witness box, whether you accept them as honest and impartial, and their reasons and, as it were, the back-up material that they furnished to support their opinions, and whether you find their opinions convincing.

You, the jury, are the sole judges of the facts and as such are not bound to accept any expert opinion evidence just because it comes from an expert.

Now as ordinary citizens you are not expected to leave your common sense behind, but you are expected to apply such ordinary common sense to the evidence you have heard and your assessment of the witnesses. And, just as you do in your every day lives, it is open and proper for you to draw inferences from the direct evidence you find established. In other words, having heard the evidence you may take the view that if certain facts are proved, well then, it follows naturally and logically from the facts that have been proved, that other events occurred or other facts are established. That doesn’t mean of course that you can guess or speculate. There are some inferences that follow logically, there are other ideas that would be pure guess-work or speculation. As I say, you mustn’t guess or speculate but it is proper for you to draw inferences which logically follow from the facts which you find proved in any other way.

[Give warning as to hearsay evidence as required by the Evidence Act 1995, s 165, if applicable, and any other warnings in the particular case.]

The action is brought by Mr or Ms [........]. He or she makes a claim against the defendant, [........], and, as Mr or Ms [........] makes the claim, it is up to him or her to prove the claim (If applicable: there is one exception to this which I will describe in a moment, but subject to that exception). You can only find in favour of Mr or Ms [........], the plaintiff, if he or she has proved his or her case. If there is any part of the case that he or she does not prove, well then, he or she fails on that issue. On the other hand, you have heard it said that the defendant relies on the defence of [describe the defence]. That is a claim made by the defendant and so it is for the defendant to prove that, and if at the end of the day the defendant has not proved that matter, well then, you find that issue against the defendant. The defendant has the responsibility of proving that part of the case.

Some of you may have sat on juries in criminal trials where a person has been charged with a criminal offence. On that occasion, you would have been told by the judge that the crown carries the responsibility or the onus, as it is called, of proving the case against the accused, beyond reasonable doubt. If you have ever sat on criminal cases and have been told that, I ask you to put it out of your minds completely. That standard of proof only applies to criminal cases. This is not a criminal case; no one is charged with any offence whatsoever. This is what we call a civil case. It is not a case of anyone being penalised by gaol or fine or breaking the criminal law — but a claim for damages, not to punish, but as compensation, and there has been no breach of the criminal law. The criminal onus of proof simply does not apply. The onus or standard of proof required in this case is on the balance of probabilities. What do you think is more probable? You may come to the conclusion on any one of the issues, that you are not sure what happened or what is going to happen, but you are satisfied that it probably happened this way, that is sufficient, even though you have doubts. If the issue is proved to be more probable than not; and it need not be a great deal more probable, the slightest degree of probability is sufficient. Bear in mind I do not say “possibility”; I do say “probability”.

It is often compared to weighing the cases in a set of scales; if one side of the scales is weighed down ever so much more slightly than the other side, that is sufficient.

I repeat, the standard of proof required is only proof on the balance of probabilities.

Now, reference has been made to the failure of (the other side) to call particular person(s) as witness(es), and it is desirable that I give you a general direction in this regard. Where it appears that there is a witness who could be expected to be able to give relevant evidence but has not been called, you are not entitled to speculate upon what he or she might have said if he or she had been called; but where that witness is a person who, in the ordinary course, you would expect, for example, a particular side to call and that side offers no satisfactory explanation as to its failure to call that witness, you are entitled to draw the inference that his or her evidence would not have assisted that party. Whether the explanation offered for not calling the witnesses is satisfactory is a matter for you. If it is satisfactory, no such inference can be drawn. Even if the explanation is not satisfactory or even if no explanation is offered, you do not have to draw such an inference, it is for you to decide whether or not you should do so. But, as I say, it is important to remember that you must not speculate or guess on what that other person might have said if they had been called but you may, although you do not have to, draw the inference that the evidence of that person would not have assisted the case of the party who, in the ordinary course of events, would have been expected to call him or her.

As members of the jury, you are here as citizens, judging a case between your fellow citizens and, consequently, and I don’t need to remind you, it is your duty to decide the case on the evidence and return a verdict based on the evidence; not based on emotion or sympathy.

You have a duty to be fair to both parties and to decide the case on the evidence you have heard, and in accordance with the law as I give it to you.