You should only litigate where there is no other option available to you and after you have considered mediation. Below is an overview of the litigation process in England and Wales under the Civil Procedure Rules (CPR). As each case is different, the particular steps required and timetable followed will depend on the facts and circumstances and the dispute.
There are also factors that cannot be predicted in advance, such as actions taken by the claimant, evidence that emerges during the case, and directions or orders given by the court. Therefore, the following summary is intended to give you a general indication of the procedure and steps that may be required. The overriding objective One important principle that underpins litigation in the English courts is the “overriding objective”. This seeks to ensure that the courts shall deal with cases fairly and at a proportionate cost.
The key factors include: Enforcing compliance with the CPR and any court orders. Dealing with a case in a way that is proportionate to the: amount of money involved; importance of the case; complexity of the issues; and financial position of each party. Saving expense. Ensuring that the case is dealt with expeditiously and fairly.
These factors must be kept in mind at each step of the litigation process. When either the CPR or a court order requires you to carry out a particular step in the proceedings, it is very important that you do so, in the manner stipulated, and within the relevant time limit. As part of its case management powers, the court may impose penalties or other sanctions on any party that does not comply with the court rules or orders. These penalties can include costs sanctions or striking out all or part of your evidence or defence. Pre-action protocols The courts will expect potential parties to act reasonably in exchanging information and documents relevant to the dispute before proceedings are even commenced. The aim is to avoid the need for legal proceedings where possible.
There can be adverse costs consequences if a party fails to follow the relevant pre-action procedure. Use of counsel If further proceedings are commenced, we may need to instruct an independent barrister or counsel to represent you at interim court hearings and at trial.
Statements of case
Each party to the proceedings must prepare certain documents that contain the details of the case they wish to advance. These documents (the statements of case) must be filed at court and served on the other party. The documents that comprise the statements of case are each dealt with below. Claim form
The claimant starts proceedings by issuing a claim form at court. The claim form contains a concise statement of the nature of the claim and the remedy sought (for example, damages). Once a claim form is issued, the claimant must serve it on the defendant within four months (if it is served within England and Wales) or six months (if served in another jurisdiction). The claim form sets out full details of the claim, including the alleged facts on which the claim is based.
Acknowledgment of service The defendant must file an acknowledgment of service within 14 days after service of the claim form. In this form, you must indicate whether you intend to defend all or part of the claim. It is possible that the defendant may also indicate that it intends to contest the court’s jurisdiction to hear the claim.
Defence The defence is the formal response to the claim. The defence must state which allegations in the particulars of claim they: Admit. Deny, giving reasons for the denial and explaining its version of events. Neither admit or deny. The deadline for filing a defence at court is relatively short. It must be filed within 28 days after service of the particulars of claim, if an acknowledgment of service has been filed. Otherwise, the defence must be filed within 14 days after service of the particulars of claim. Subsequent statements of case A claimant is not obliged to file a reply to the defence. If you file a reply that does not deal with a matter raised in the defence, you are not taken to have admitted that matter. If a counterclaim has been served, a defence to the counterclaim should normally be filed within 14 days of service of the counterclaim. In principle, it is then possible for there to be further statements of case, such as a reply to the defence to counterclaim. In addition, a party may seek to amend its claim or defence, although it is likely to require the court’s permission to do so.
Statements of truth
Each statement of case must be verified by a statement of truth. This confirms that the person making the statement believes that the facts stated in the document are true. Statements of truth must also be signed in each witness statement and certain other documents filed in proceedings. There are penalties for signing a statement of truth without an honest belief in the truth of the facts being verified. Further, a failure to verify a document can mean that the party will be unable to rely on the document as evidence of any of the matters set out in it, or that a statement of case is struck out.
Interim remedies and final judgments without trial
The CPR provide for certain procedures that might enable a party to obtain a remedy or judgment before a full trial of the claim. Some examples of these remedies are mentioned below. Default judgment As stated, if you fail to file a defence within the relevant time limit, you may obtain a judgment in default of defence, which means that judgment is entered on the claim without a trial. If default judgment is entered, you may apply to court to have the judgment set aside or varied on the grounds that the defence has a real prospect of succeeding, or there is some other good reason to do so.
Summary judgment
Summary judgment is a means of the court determining the claim at an early stage, avoiding the need for a full trial. It may be appropriate to apply to court for summary judgment, either on the whole of the claim or on a particular issue, if it can be established that: The claim or issue has no real prospect of succeeding. There is no other compelling reason why the claim or issue should be disposed of at a trial. Note that summary judgment may also be sought by a claimant, on the grounds that there is no real prospect of the defence succeeding. Strike out The court has the power to strike out a party’s statement of case (including a claim form, particulars of claim or defence), either in whole or in part, if one of the following apply: The statement of case discloses no reasonable grounds for bringing or defending the claim. The statement of case is an abuse of process. There has been a failure to comply with a rule or court order. Security for costs The court may order a claimant to provide security for the defendant’s costs of the proceedings, usually by way of a payment of money into court. This would offer protection against the risks of the claimant not being able to pay your litigation costs if ordered to do so. The court must be satisfied that it is just to make an order for security for costs in all the circumstances of the case. Note that the claimant would be able to seek security for costs in respect of any counterclaim you make against it.
Interim injunctions
An injunction is an order that requires a party to do, or to refrain from doing, a specific act or acts. For example, a freezing injunction preserves the defendant’s assets pending judgment or final order, if the court is satisfied that there is a risk that the defendant will dispose of assets that would otherwise be available to meet his liability. An application for injunctive relief is not a step that should be taken lightly. The applicant is usually required to give an undertaking in damages, that is, an undertaking to compensate the defendant for any loss incurred, should it later transpire that the injunction was wrongly granted. I will advise you in more detail if the defendant makes an application for an injunction or if it appears that there are grounds on which you might seek an injunction.
Case management A
fter a defence has been filed, the court will serve a notice of proposed allocation. This case appears suitable for allocation to the fast track (through money claim online). The fast track is governed by Civil Procedure Rules 28 and Practice Direction 28 and is designed to provide a quicker, simpler procedure to the multi-track for lower value cases which do not require detailed preparation and a lengthy trial. The aim is for fast track claims to proceed quickly to trial within a short timescale after the filing of the defence.
Fast track cases should be compromised or tried within a period of 30 weeks from the allocation and giving of directions. Although not expressly stated in CPR 28 or PD 28, we would expect fast track claims to be heard in the County Court. This is due to the criteria for allocation to the fast track, including financial value, which would make a claim inappropriate for issue in the High Court. If it is deemed as too complicated for the fast track, it will be heard through the multi-track which is usually the resolution of civil disputes used for cases over £25,000 and those which are not straightforward.
Directions questionnaire
The aim of the directions questionnaire is to provide information to assist the court in allocating the case to the appropriate track, and in giving directions for how the case should be conducted. It is a key element of the Civil Procedure Rules that parties should make every effort to settle their case. At this stage you should still think about whether it is possible to settle the dispute without the matter proceeding to a hearing. To that end, you will be asked if you agree to this case being referred to the Mediation Service. Mediation is a flexible, voluntary and confidential form of alternative dispute resolution (ADR), in which a neutral third-party assists parties to work towards a negotiated settlement of their dispute, with the parties retaining control of the decision on whether or not to settle and on what terms. There are different styles of mediation but the most common is facilitative mediation in which, unlike a judge or arbitrator, the mediator will not decide the case on its merits, but will work to facilitate agreement between the parties. In addition, you must set out your proposals in relation to the following: Expert evidence that will be required. Witness evidence that will be relied on.
Directions, that is, the procedural timetable for the matter. Each party must also file a budget of his costs for each stage of the litigation during trial. The directions questionnaire must be filed by the date specified in the court’s notice of proposed allocation. Therefore, it is necessary to address each of these issues at an early stage in the proceedings.
Directions
Following allocation, the court will give directions (either tailored or “standard”). The court will inform the parties whether or not a hearing is required to dispose of the matter. The court may dispose of the matter without a hearing if the parties agree. In many instances, there will not be a hearing. Accordingly, the directions questionnaire and statements of case are very important, as the case may be decided on the basis of the documentation alone.
Disclosure
Disclosure will be limited to what is required in the case, having regard to what is proportionate. Both CPR 28.3(2) and the Appendix to PD 28 assume that the order for disclosure may be more limited than the usual order for standard disclosure. The court may direct that no disclosure takes place or specify the documents or classes of documents which the parties must disclose. It will be important to think carefully about any documentation that your opponent has that you would like to bring to the court’s attention. If there is anything, write to them first and request inspection. Then, if they do not oblige, you can try applying to the court for a special direction instead. Interim applications An interim application is made when a party seeks a court order before the trial of the claim. An application may be made for a variety of procedural or tactical reasons, depending on the circumstances (for example, to seek an interim injunction, specific disclosure of documents or an extension of time to complete a procedural step). I will advise you as the case progresses if any interim applications might be appropriate. If the other side makes any interim applications, it will be necessary to incur some additional time and costs in responding to them. Any costs orders that the court makes in relation to an interim application may have to be paid during the course of the proceedings.
Settlement and Alternative Dispute Resolution (‘ADR’)
It is important to keep settlement in mind at all stages of the proceedings. The CPR and the courts encourage settlement of disputes in a number of ways; in particular, by the use of ADR. Although the court cannot order the parties to enter into ADR, it may impose costs penalties on a party who unreasonably refuses to participate in a form of ADR. If there are any prospects of settling, it is usually better to do so sooner rather than later, to avoid further legal costs. Evidence For the court to accept a claim, it must be proved on a balance of probabilities. You will be required to present evidence to support each of the essential ingredients of the claim. The defendant will need to adduce evidence to support its defence, and to deal with those elements of the claim that are disputed. The evidence is usually comprised of: Contemporaneous documents (including electronic documents as well as hard copies) intended to prove the issues in dispute. Statements from factual witnesses, to tell the story behind the dispute and to fill in any gaps that the documents leave. Expert evidence (where appropriate and permitted), to assist the court when the case involves complex technical, academic or foreign law issues. Inspection of documents and privilege
After the parties have exchanged their lists of documents, each party is entitled to inspect the other’s disclosed documents. Privilege entitles a party to withhold documents from inspection. In particular: Legal advice privilege protects confidential communications between a client and his/her lawyer that came into existence for the purpose of giving or receiving legal advice. Litigation privilege arises when litigation is contemplated, pending or in existence, and protects communications between a client or his/her lawyer and a third party, provided certain criteria are satisfied. Without prejudice privilege applies to communications made in a genuine attempt to settle a dispute.
Witness statements
It would be helpful to identify those individuals who were involved in the events giving rise to the claim. If the claim proceeds, it will be necessary to prepare a written statement of the evidence that each individual intends to give to support the defence. These statements will be sent to the defendant. We will also receive the defendant’s witness statements. The time period for exchanging witness statements will be agreed by the parties or ordered by the court. The court may also give directions identifying the witnesses who may give evidence, or limiting the number of witnesses and the issues that may be addressed. A witness statement must: Be in the witness’s own words, if practicable. Indicate which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief stating the source of those matters. Include a statement of truth. The witness statements normally stand as evidence in chief. A witness may be called to trial to be cross-examined on his statement. Expert evidence Expert evidence is used where the case involves matters on which the court does not have the requisite technical or academic knowledge, or the case involves issues of foreign law. In this case, it may be helpful to obtain evidence from an expert on. The court’s permission to call expert evidence is always required. If it grants permission, the court will limit the evidence to the named expert or field ordered, and may specify the issues which the expert should address. Parties may instruct another expert to assist them, but any evidence from that expert will not be admissible and the costs of instructing that expert will not be recoverable from the other side. The court may order that expert evidence is to be given by a single joint expert, namely an expert who is instructed on behalf of both parties. However, this is not common in multi-track cases.
Expert evidence is usually given in the form of a written report, which must be the independent product of the expert. The expert’s overriding duty is to the court and not to the party that instructed him. Expert reports are usually exchanged simultaneously, but may be exchanged sequentially. Following the simultaneous exchange of expert reports, a party may put questions to the other party’s expert for the purpose of clarifying his report. Questions must normally be put within 28 days of service of the report. There is then likely to be a discussion between the experts for the purpose of reaching an agreed opinion on the issues where possible. An expert may give oral evidence at trial only if the court grants permission to do so.
Preparation for trial
The courts are reluctant to postpone a trial date or period that has been fixed without a very good reason. Therefore, although most cases settle, it is important to be properly prepared in case the matter does proceed to trial. Some of the steps required are set out below.
Pre-trial review The court may order that a pre-trial review (PTR) be held, particularly in more substantial cases where there are significant issues between the parties. The main purposes of the PTR are to: Check that the parties have complied with all previous court orders and directions. Prepare or finalise a timetable for the conduct of the trial, including the issues to be determined and the evidence to be heard. Fix or confirm the trial date.
Preparation of skeleton arguments Each party will be required to supply the court and the other party with a written skeleton argument, namely a written outline of that party’s case and arguments before trial.
Trial and judgment You should note that: The length of the trial will depend on the complexity of the legal and factual issues to be resolved and the number of witnesses permitted to give evidence. The trial will be held in public, unless the court has ordered that it may be held in private because it involves matters of a confidential nature and publicity would cause harm or damage. The trial will be heard by a single judge alone The judgment may be given immediately after the trial.
Costs
Costs are recoverable on claims allocated to the fast claims track although are limited. For claims with a value of more than £10,000.00 but not more than £15,000.00 the trial costs that may be awarded are £1,035.00. The court may also award such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably. Enforcement Once judgment has been obtained, the judgment debtor should pay voluntarily any amount he is ordered to pay. If payment is not made, there are a number of enforcement procedures available to the judgment creditor to enforce payment. Appeals In order to appeal, you must show a mistake in law or a serious procedural irregularity. As there is no set procedure on the fast claims track, it can be hard to say what is a serious procedural irregularity. Presumably it would be something that resulted in the hearing being unfair. We must warn you that any appeal may be unlikely.
Michael Coyle
Michael.coyle@lawdit.co.uk
