39.03 Reluctant witnesses may be compelled to attend trial by serving them with a witness summons. An example of such a summons is shown in form 39.1. A witness summons may require the named witness simply to attend to give oral evidence, or to produce specified documents, or both. A witness summons to produce documents is not a form of disclosure in the sense of disclosure between parties, and is limited to the production of documents relevant to the substantive issues in the claim. Consequently, a witness cannot be summoned to produce p. 443p. 444train-of-inquiry documents: Macmillan Inc v Bishopsgate Investment Trust plc [1993] 1 WLR 1372. The documents to be produced must be sufficiently described, although classes of documents may be described compendiously: Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142. A witness summons may require the witness to produce documents either at the trial or on such other date as the court may direct (CPR, r 34.2(4)(b)), which may be some time before the trial so as to enable the parties to take stock after receipt of the documents.

39.04 Issuing a witness summons is purely administrative. The form must be completed, a fee is paid, and the form is sealed by the court. Unless the court gives permission, a witness summons will be binding on the witness only if it is served at least seven days before the trial (r 34.5). A person served with a witness summons must also be offered a sum of money (known as conduct money) to cover travelling expenses to and from the court and compensation for loss of time (r 34.7).

39.05 The court may set aside or vary a witness summons (CPR, r 34.3(4)), and may do so if it appears that the person summoned is unable to give relevant evidence, or if there is some other strong reason for not requiring his or her attendance at the trial. A judge acting in his judicial capacity, even if able to give relevant evidence, is not a compellable witness: Warren v Warren [1997] QB 488.

39.06 Where it appears to be necessary in the interests of justice to do so, the court may order a witness’s evidence to be given by deposition (CPR, r 34.8). This is discussed at 32.33–32.35. A party intending to use a deposition at trial must give other parties notice of that intention at least 21 days in advance of trial (r 34.11).

39.07 The evidence of witnesses already outside the jurisdiction may be obtained by the High Court on its own behalf or on behalf of the County Court (CPR, rr 34.13–34.21) by:

39.08p. 445 It was held in Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142 that a letter of request may be confined to the production of documents in the possession of the witness outside the jurisdiction. The documents that may be required to be produced have to be identified, and must be restricted to documents which could have been the subject of a witness summons. In other words, this is not a procedure for obtaining disclosure of documents against the witness, but for obtaining admissible evidence on the issues in the claim.

39.09 All the documents likely to be referred to at fast track and multi-track trials should be placed into paginated files called trial bundles. Identical bundles should be made available for each of the parties, the judge, and a further set for use by the witnesses while giving evidence. This assists in ensuring that everyone is considering the same document at any one time, and avoids delays during the trial when documents are referred to. Poorly prepared bundles are perhaps the greatest source of complaint from judges.

39.10 Trial bundles should be filed by the claimant not more than seven and not less than three days before the start of the trial (CPR, r 39.5(2)). The responsibility for preparation of the trial bundles rests with the legal representative of the claimant. There are detailed rules for trial bundles in PD 32, paras 27.3–27.14. Unless the court otherwise orders, the trial bundle should include:

39.11 The trial bundle should normally be contained in ring-binders or lever-arch files. It should be copied double-sided, paginated continuously throughout, and indexed with a description of each document and the page number. If any document is illegible, a typed copy should be included next to it. The contents of the bundles should be agreed if possible. If there is any disagreement, a summary of the points in dispute should be included. Bundles exceeding 100 pages should have numbered dividers. Where a number of files are needed, each file should be numbered or distinguishable by different colours. If there is a lot of documentation a core bundle should also be prepared containing the most essential documents, and it should be cross-referenced to the supplementary documents in the other files (para 27.8). Identical bundles with the same colour-coded files have to be supplied to all the parties plus the bundle for the court and a further one for the use of the witnesses at the trial (para 27.12). See 34.20 on the admissibility of documents in agreed bundles.

39.12 In all KBD and ChD claims where trial bundles must be lodged, the claimant or applicant must at the same time lodge:

39.13 This must be signed by all the advocates who will appear at the hearing. Each advocate’s name, business address, and telephone number must appear below his or her signature. In the event of disagreement about any of these matters, separate reading lists and estimates must be signed by the appropriate advocates. See Practice Direction (RCJ: Reading Lists and Time Estimates) [2000] 1 WLR 208. In addition to the trial bundles, the trial judge has a discretion about what other material to read by way of pre-trial preparation, and may read material containing inadmissible evidence: Barings plc v Coopers and Lybrand [2001] CPLR 451.

39.14 In a case of any size it is essential that a case summary should be prepared. This should be a short, non-contentious, summary of the issues in the case and of relevant procedural matters. If possible it should be agreed by all parties.

39.15 Skeleton arguments are compulsory for High Court trials, and sometimes are required by directions in the County Court. Trial skeletons are similar in concept to those used for interim applications (see 23.38–23.40) concisely summarizing the submissions to be made in relation to the issues raised and citing the authorities to be relied upon. They should be filed two days before the trial (KBD) or with the trial bundles (ChD). It is often useful to provide a short chronology of the important events.

39.16 Normally trials will take place at the court where the case has been proceeding, but it may be transferred to another court for trial if this is appropriate having regard to the convenience of the parties and the availability of court resources (PD 28, para 8.1 and PD 29, para 10.1). Multi-track cases will generally have been transferred to Civil Trial Centres when allocated to the multi-track (if commenced in a feeder court), but they may be allowed to proceed elsewhere if that is appropriate given the needs of the parties and the availability of court resources.

39.17 Remote hearings are dealt with in Chapter 40. The court has inherent power to adjourn trial to the bedside of an infirm witness: St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1973] Ch 323.

39.18 District Judges can deal with all small claims, fast, and intermediate track cases, so effectively their trial jurisdiction is £100,000 (PD 2B, para 11.1). District Judges may also hear most Part p. 4478 claims automatically treated as allocated to the multi-track, certain landlord and tenant cases, assessments of damages, and cases allocated to a District Judge with the permission of the Designated Civil Judge (para 11.1). Injunction and committal applications may be heard by a District Judge if the claim has been allocated to the small claims, fast, or intermediate tracks.

39.19 Most multi-track cases will be tried by High Court judges and, in the County Court, by Circuit Judges and Recorders.

39.20 It has long been established that a judge must not sit in his or her own cause. The rule laid down in Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 by Lord Campbell is now interpreted as not being confined to a claim in which the judge is a party, but applies also to a claim in which the outcome could, realistically, affect an interest of the judge. In R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119 the House of Lords held that the principle that a judge is automatically disqualified from hearing a case in his or her own cause is not limited to situations where the judge has a pecuniary interest in the outcome, but applies also to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. The automatic disqualification rule is subject to the de minimis principle, in that some supposed financial interests are so small they can be ignored: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.

39.21 Under the European Convention on Human Rights, art 6(1), litigants are entitled to a fair hearing before an impartial tribunal, so a judge will also be unable to sit if there is an appearance of bias. According to Porter v Magill [2002] 2 AC 357 and Taylor v Lawrence [2003] QB 528, the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge is biased. The court must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. Where the judge’s explanation was not accepted by the party making the suggestion of bias (or apparent bias), that also had to be considered from the viewpoint of the fair-minded observer.

39.22 Guidance on situations where there may be a real danger of bias was given by the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd, which is of particular relevance to cases dealt with by solicitor and barrister deputy judges. The Court of Appeal could not conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means, or sexual orientation of the judge. Nor, at least ordinarily, could there be a valid objection based on the judge’s social, educational, service, or employment background, nor that of any member of his or her family. Nor could an objection be based on previous political associations, membership of social, sporting, or charitable bodies, or Masonic associations; previous judicial decisions; extra-curial utterances, whether in textbooks, lectures, speeches, articles, interviews, reports, or responses to consultation papers; previous receipt of instructions to act for or against any party, solicitor, or advocate engaged in the current case; or membership of the same Inn, circuit, local Law Society, or chambers.

39.23 By contrast, there might be a real danger of bias if there was personal friendship or animosity between the judge and anyone other than the lawyers involved in the present case; or if the judge was closely acquainted with a witness whose credibility was in issue; or if the judge had ruled against the credibility of a witness in a previous case in outspoken terms such as to cast doubt on whether the judge could deal with the witness in the current case with an open mind (but not if the judge had commented adversely on a party or witness in p. 448a previous case in temperate terms); or if the judge had expressed views on a matter also in issue in the present case in such extreme terms as to throw into doubt his or her ability to try the case objectively. If there is any doubt, it should be exercised in favour of refusing to sit. Judges are obliged to mention any possible conflict when they become aware of its existence. Wherever possible this is done in advance of the commencement of the trial, and any objection based on apparent bias must be made when it arises, rather than awaiting the result of the hearing (Steadman-Byrne v Amjad [2007] 1 WLR 2484).

39.24 Where proceedings are abandoned because of the appearance of bias on the part of a member of the court, the Lord Chancellor is not liable for any of the costs incurred at the wasted hearing: Re Medicaments and Related Classes of Goods (No 4) [2002] 1 WLR 269.

39.25 Under the European Convention on Human Rights, art 6(1), parties have a right to a public hearing. The general rule therefore is that trials will be conducted in public (CPR, r 39.2(1)). A decision to sit in private is for the court, which is not bound by any consent between the parties (r 39.2(1)).

39.26 In deciding whether to sit in private the court must take into account rights and duties relating to freedom of expression (r 39.2(2)). By r 39.2(3), a hearing must be conducted in private if it is necessary to sit in private to secure the proper administration of justice and if one of the following conditions is satisfied:

39.27 Further, the court must only order that the identity of any person shall not be disclosed if it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person (r 39.2(4)). Anonymity orders are exceptional, and potentially raise competing claims under the European Convention on Human Rights, arts 8 (the need for privacy) and 10 (freedom of expression), which have to be balanced against each other (Re Guardian News and Media Ltd [2010] 2 AC 697). Such orders have to be published on the Judiciary website <http://www.judicary.uk>. Care needs to be taken in drafting these orders to ensure the published version does not reveal identifying information (Practice Guidance: Publication of Privacy and Anonymity Orders, 16 April 2019).

39.28 Proceedings under the Prevention of Terrorism Act 2005 are often held in private (CPR, r 76.22). As there will often be ‘closed material’ (see the Justice and Security Act 2013 and CPR, r 76.28 and Part 82) in cases under this Act, the Attorney-General may appoint a ‘special advocate’ to represent the interests of the relevant party (rr 76.23 and 82.9–82.15). Secretary of State for the Home Department v AHK [2009] 1 WLR 2049 deals with the discretion to appoint a special advocate in these cases.

39.29 Rights of audience and the right to conduct litigation are reserved legal activities within the meaning of the Legal Services Act 2007 (s 12 and Sch 2). A person is only entitled to carry on these activities if they are a regulated person authorized to do so by an approved regulator or if they are exempt in relation to the relevant activity (ss 13 and 176). Approved regulators include the Law Society, the General Council of the Bar, the Institute of Legal Executives, the Council for Licensed Conveyancers, and the Association of Law Costs Draftsmen (Sch 4). These provisions ensure that persons with general rights of audience or to conduct litigation have to comply with the regulatory requirements of their approved regulator (s 176(1)). Any such person has a duty to the court to act with independence and in the interests of justice (s 188(2)). An advocate to the court (amicus curiae) may be appointed where an important point of law might otherwise not be properly argued (PD 3F).

39.30 This means the following persons have rights of audience:

39.31 Rule 39.6 of the CPR provides that a company or corporation may appear at a hearing through a duly authorized employee provided the court gives permission. Permission should generally be sought on an occasion prior to the hearing, but may be granted at the hearing itself.

39.32 A McKenzie friend (‘MF’, from McKenzie v McKenzie [1971] P 33), is an unqualified person who assists a litigant who would otherwise be acting in person. Most MFs assist litigants who are individuals, but the court has inherent jurisdiction to permit a MF to assist a company (Bank St Petersburg PJSC v Arkhangelsky (No 2) [2016] 1 WLR 1081).

39.33 The primary function of an MF is to provide moral support for a litigant at a hearing. An MF is not permitted to conduct litigation or act as an advocate without the court’s permission. Practice Note (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881 sets out guidance based on the statutory provisions governing rights of audience in the Legal Services Act 2007, and various decisions of the courts. Litigants in person ordinarily have a right to receive reasonable assistance from an MF if they wish, but the court retains the power to refuse to permit such assistance. The Practice Note says an MF may:

39.34 Limitations on what MFs are permitted to do set out in the guidance are:

39.38 The trial judge will generally have read the papers in the trial bundle before the trial. It will often be the case that in those circumstances there is no need for an opening speech, which may be dispensed with (PD 28, para 8.2 and PD 29, para 10.2). If an opening speech is allowed, counsel for the claimant will usually describe the nature of the claim, and will identify the issues to be tried by reference to the statements of case and/or the statement of issues. Some of the documentary evidence may be referred to. It sometimes happens that the judge will rise during the course of the opening to read some of the documents.

39.39 After the claimant’s opening speech, evidence will be called on behalf of the claimant. Broadly, evidence adduced at trial will be real evidence (ie physical items), contemporaneous p. 451documentary evidence, views of the site, and the evidence of witnesses. The judge has a discretion to inspect the locus in quo if there are compelling reasons to do so, outweighing the time and expense of a view. Inspections should generally be conducted in the presence of the parties.

39.40 There are occasions when evidence is adduced in a deposition, by affidavit, or in the form of hearsay statements. It is rather more usual for evidence from witnesses to be produced by calling the witnesses to give evidence from the witness box. Witnesses are sometimes asked to leave the court until they are called so they are not influenced by the evidence given by other witnesses, but they remain in court in the large majority of cases. Subject to any trial directions they may be called in any order.

39.41 Vulnerable parties and witnesses may be protected by an order providing for ground rules, special measures, or other support (PD 1A, para 9). This may include prohibiting, limiting, or modifying cross-examination, or the appointment of a legal representative to conduct the cross-examination (para 8(d)). Special measures include the use of screens, giving evidence by video conference, hearing a witness in private, dispensing with wigs and gowns, using pre-recorded evidence, questioning a witness through an intermediary, and other use of technology (para 10).

39.42 When a witness is called they are sworn or affirm in a manner they consider binding (Oaths Act 1978). Traditionally witnesses would give their evidence in answer to non-leading questions put to them by counsel for the party calling them. However, under the CPR witness statements of witnesses called at trial will stand as the evidence-in-chief unless the court otherwise orders (r 32.5(2)). Technically, it is possible to augment the evidence contained in the exchanged statements only if, by virtue of r 32.5(3) and (4), the court considers there is good reason not to confine the witness to the contents of his or her witness statement, and for the purpose of either:

39.43 The CPR, r 32.5(5), provides that where the party who has disclosed a witness statement does not use it at trial, ‘any other party may put the witness statement in as hearsay’. In McPhilemy v Times Newspapers Ltd [2000] CPLR 335, the party who disclosed a witness statement decided against calling the witness. The opposite side then attempted to put the statement into evidence for the purpose of proving that its contents were untrue. Permission was refused because of the general rule of evidence that a party is not allowed to adduce evidence that his own witnesses (in this case the witness who made the witness statement) are not to be believed on their oaths.

39.44 After being examined-in-chief, each witness may be cross-examined by counsel for the defendant. Where there is more than one defendant, they cross-examine in the order they appear on the court record. Cross-examination may be conducted using leading questions (ie questions which suggest the required answer). A party who wishes to submit that the evidence of any factual or expert witness should not be accepted is, subject to technical exceptions, required to challenge the evidence of that witness in cross-examination (Griffiths v TUI (UK) Ltd [2023] 3 WLR 1204).

39.45 A witness who has been cross-examined may be re-examined by counsel for the claimant on matters covered in cross-examination. Leading questions are not allowed.

39.46 Exhibits which are handed in and proved during the course of the trial will be recorded in an exhibit list and kept in the custody of the court until the conclusion of the trial. At the conclusion of the trial the parties have the responsibility of taking away and preserving the exhibits pending any possible appeal.

39.47 At the conclusion of the case for the claimant, the defendant may make a submission of no case to answer. This is made on the basis that on the evidence adduced by the claimant the claim cannot succeed. A submission of no case to answer should rarely, if ever, be entertained in cases tried by a judge sitting alone (Benham Ltd v Kythira Investments Ltd (2003) LTL 15/12/03). As the judge is the trier of both law and fact, it is embarrassing for the judge to be asked to rule on the merits of the claim while the evidence is still incomplete. Further, if the judge’s ruling were to be reversed on appeal, there would be the added cost of having a retrial.

39.48 It is therefore the general rule that defendants seeking to make a submission of no case to answer will be put to an election as to whether they will call any evidence. It is only in exceptional cases that they will not be put to this election: Boyce v Wyatt Engineering (2001) LTL 1/5/01. If they are put to their election, and decide to call no evidence, they can make a submission of no case to answer, which will be decided on the basis of whether the claimant’s case has been established by the evidence on the balance of probabilities, and judgment will be entered for whichever party succeeds on the submission. In cases where the defendant is not put to an election, the submission is considered on the basis of whether the claimant’s case has no real prospect of success: Miller v Cawley (2002) The Times, 6 September 2002. In such a case, if the submission is unsuccessful the defendant is allowed to call its evidence and the trial continues in the normal way.

39.49 Where the defence decides to call evidence, it may be allowed to make an opening speech (though this is now rather unusual). It then calls its evidence in the same way as the claimant. Where there is more than one defendant, they present their evidence in the order they appear on the record.

39.50 Where the defence has called evidence, the defence closing speech is made before that of the claimant. 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. Counsel also argue any legal points that arise, sometimes making use of skeleton arguments. The time limits imposed by trial timetables may have the practical effect of forcing advocates to make even greater use of skeleton arguments, so as to ensure they are able to cover the required ground within the time limited by the court.

39.51 During the course of the trial the judge may put questions to the witnesses, particularly if matters remain obscure after counsel’s questions. Judges should be careful to avoid interrupting the flow of counsel’s questions, particularly during cross-examination: Jones v National Coal Board [1957] 2 QB 55. The judge will have to rule on any applications and any objections to the admissibility of evidence or questions during the course of the trial. After hearing the evidence the judge must decide where the truth lies, decide any points of law, and give judgment. The person who asserts has the burden of proof (Armstead v Royal & Sun Alliance Insurance Co Ltd [2024] 2 WLR 632), so the claimant needs to prove their cause of action and remedy, and the defendant has the burden of proof on defences, and issues such as a failure to mitigate loss or remoteness. The civil standard of proof is on the balance of probabilities (Bank of St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408). If the party with the burden of proof fails to discharge that burden, the fact is treated as not having happened. If the burden of proof is discharged, the court treats the fact as having happened. There is no halfway house p. 453between the two (Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11). Inherent probabilities have to be taken into account as a factor ‘to whatever extent is appropriate in the particular case’ (Lord Nicholls of Birkenhead in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 583), but do not alter the balance of probabilities test.

39.52 Judgment is often given immediately, but in complicated cases may be reserved. Transcripts, which are required for appeals, can be obtained on payment of authorized charges (CPR, r 39.9(3)). After judgment is given the court will deal with the question of costs, the form of the judgment, and any application for permission to appeal.

39.53 Normally, once the parties have completed their evidence they are not allowed to seek to put more evidence before the court. However, there is not a complete ban. A distinction may be drawn between:

39.56 Orders for the trial of preliminary issues are made either on the application of a party or by the court of its own initiative. It is rare for the court to make such an order without the concurrence of at least one of the parties. It is not possible to make such an order by consent. Normally the application is made at the allocation or listing stage, or on a case management hearing, although it is not unknown for an application to be made to the trial judge at the beginning of a trial.

39.57 Where an order for the preliminary trial of an issue of law or fact is made, the court must formulate the issue to be tried. It is important that the issue is defined with precision so as to avoid future difficulties of interpretation. If it is impossible to define the issue, no order should be made: Allen v Gulf Oil Refining Ltd [1981] AC 101. If the issue is one of law, the court must further order the issue to be tried either:

39.58p. 454 In Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184, an issue as to whether words were capable of a defamatory meaning was ordered to be tried on the pleadings in conjunction with the copy of the magazine in which the offending article appeared.

39.59 Factors to be taken into account when deciding whether to order the determination of a preliminary issue identified in Steele v Steele (2001) The Times, 5 June 2001, include:

39.60 Issues raised in personal injuries cases as to the claimant’s ‘date of knowledge’ under the Limitation Act 1980, s 14, may be suitable for trial as preliminary issues. In Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184, the issue whether the words published were capable of bearing a defamatory meaning was determined as a preliminary issue.

39.61 There is a right to trial by jury in actions involving claims in deceit, malicious prosecution, and false imprisonment. This right extends to claims in the County Court (CCA 1984, s 66) and the KBD of the High Court (SCA 1981, s 69) but not to claims in the ChD. The right to trial by jury is subject to the court otherwise being of the opinion that the trial requires prolonged examination of documents, or accounts, or any scientific or local investigation which cannot conveniently be made by a jury. A request for trial by jury should be made within 28 days of service of the defence (CPR, r 26.19(1)).

39.62 The right to trial by jury in defamation claims was removed by the Defamation Act 2013, s 11. There is a theoretical discretion to allow trial by jury in defamation and even in other cases, but the courts are extremely reluctant to exercise it: Williams v Beesley [1973] 1 WLR 1295.

39.63 Juries are 8 strong in the County Court and 12 strong in the High Court. Jurors are selected from the jury panel by ballot. They may be challenged and asked to stand down only for cause, such as proven bias. After inquiring, the trial judge should discharge any juror who will suffer inconvenience or hardship by having to serve for the estimated length of the trial (Practice Direction (Juries: Length of Trial) [1981] 1 WLR 1129). During the course of a High Court trial, a juror may be discharged on the ground of evident necessity.

39.64 Questions of law are for the judge, and questions of fact are decided by the jury in the light of the judge’s summing-up. The jury should not deliberate until they are all together in the jury p. 455room. Verdicts should normally be unanimous, but if a jury cannot agree, majority verdicts of 7:1 in the County Court and 11:1, 10:2, 10:1, and 9:1 in the High Court may be accepted.

39.65 A trial may proceed despite the non-attendance of any of the parties, and the court may simply strike out the claim or defence, and any counterclaim or defence to counterclaim (CPR, r 39.3(1)). Attendance by a party’s legal representative without the actual party counts as attendance (Rouse v Freeman (2002) The Times 8 January 2002). The court has a power to restore the proceedings (or any part of the proceedings) that may have been struck out due to non-attendance (r 39.3(2)), and may set aside any judgment entered in such circumstances (r 39.3(3)). Applications to set aside or restore must be supported by evidence (r 39.3(4)), which can be the same evidence used on an earlier application to adjourn the trial (Family Channel Ltd v Fatima [2020] 1 WLR 5104). Orders to restore or set aside may, by r 39.3(5) be granted only if the applicant:

39.66 Divergent approaches have been adopted by differently constituted courts. Mohun-Smith v TBO Investments Ltd [2016] 1 WLR 2919 held that it was wrong to apply too rigorous an approach to the first two conditions (applying promptly and the reasons for non-attendance), and that once the three conditions are satisfied, the court would require very unusual circumstances to refuse to set aside. Conversely, Gentry v Miller [2016] 1 WLR 2696 held that after considering the three r 39.3(5) conditions, the court must apply the Denton principles (see 37.26ff) in accordance with the implied sanctions doctrine.