What is the litigation process?

Disputes bring with them disruption whether they are regarding your business, property or your personal life.  Our Litigation and Dispute Resolution team understand that you will be looking for a swift resolution, handled in a sensitive but professional way to maintain relationships for the future.

We also appreciate that it is likely you will not have been through the litigation process before.  While we know that every client is different, we have set out the process here to help you understand the key stages, the questions you are likely to face and the costs involved.  While we have answered the majority of these questions from the point of view of the Claimant (the party bringing a claim against another person or business), we can also act for Defendants (the party who the claim is brought against).  The same process would apply for a Claimant or Defendant, and we can offer the same advice and support no matter your position in the claim.

It is important to note that the overriding objective of the Courts in any litigation action is to deal with cases justly and at a proportionate cost.  The Courts will be keen to see that you have considered other avenues, such as Alternative Dispute Resolution (ADR) before going to Court, and that is where we can help.

The first step is to appoint a legal representative to help with your situation.  While litigation is something you can do yourself, we would always recommend that you seek legal advice as to the best course of action and to adhere to the strict timescales and legal documentation required. 

Initial Meeting

Once you have instructed us as your legal representative, you shall have a face-to-face meeting with person who is acting on your behalf in one of our offices.  Depending on the nature of your claim, this will be with Helen Porter, Torion Bowles, Brian Kirby or Daniel Coleman.

Ahead of the meeting, we will have reviewed your relevant documentation, so that during the meeting we can advise on the merits of your case and the relevant options for proceeding, as well as providing you with a cost estimate.

Following the meeting, a written summary of the advice given in the meeting will be provided alongside our client engagement letter and terms and conditions of business.

Letter before claim

Our first step in acting on your behalf is to send a “letter before claim” to the potential Defendant, which is part of the pre-action protocols.  This letter will set out the legal basis on which the claim is to be made along with a summary of the facts.  The letter of claim will also detail what you are looking to achieve from the Defendant, for example damages by way of compensation or injunctive relief, along with a breakdown of how any financial loss has been calculated.

The “letter before claim” should also, where appropriate, invite the Defendant to agree to a form of ADR, such as mediation, in order to avoid the Courts and to mitigate costs. 

A reasonable date for the Defendant to respond will also be specified in the letter. What is reasonable depends upon the claim and the pre-action protocol, which we will discuss with you in our initial meeting.

Defendant’s response to “letter before claim”

A Defendant who receives a “letter before claim” needs to respond within the allocated time to avoid you issuing Court proceedings in the first instance.

Their response should either accept the claim, in whole or in part, or state that the claim is not accepted. If the claim is not accepted they need to give reasons why the claim is not accepted and state whether they intend to make a counterclaim.

If you receive a “letter before claim”

If you have received a “letter before claim”, a response will be required by the specified date. If you do not respond by this date, the other party may issue Court proceedings against you.

If you do not accept the allegations that are made in the “letter before claim”, we can draft a letter of response. This will set out why you do not accept their claim and if possible, provide evidence of why this is the case.

Claim form

If there has been no response from the Defendant by the date provided for in the “letter before claim”, or the Defendant denies liability but has not agreed to alternative methods of resolution, then Court proceedings can be started.  

Court proceedings are begun by sending a claim form and “particulars of the claim” to the Court. This sets out the nature of the claim and the remedy that is sought, as well as providing further detail as to the legal basis on which the claim is being brought.  Evidence, such as a contract, invoice and/or correspondence, as well as a copy of any compliance with pre-action protocols should also be included.

Along with the claim form, you are required to pay the Court issue fee which will be determined by the remedy being claimed.  Click here to see Court fees.

Acknowledgement of service

Once a claim form has been issued, the Defendant has 14 days to accept liability or file a defence.  If the Defendant files an “acknowledgement of service” within 14 days then this will extend the time for filing their defence to 28 days from the date of issue of the claim form.  In the acknowledgement, the Defendant must indicate whether they intend to defend all or parts of the claim.

Defence

Unless the Defendant admits the whole of the claim, they must file a defence.  The defence must state which allegations in the “particulars of claim” they admit or deny and which are neither admitted nor denied and so requires you to prove. Depending on whether they supplied an “acknowledgement of service” as detailed previously, they will either have 14 days or 28 days to file their defence.

An extension of time up to an additional 28 days may be agreed; however, if additional days are required and there is no agreement between the parties, the Defendant will need to apply to the Court for such an extension.

If no defence is filed in time, you can apply for a judgment in default of a defence.

Further to the Defendant filing the defence, you may file a reply but you are not obliged to do so.

Counterclaims/Additional claims

The Defendant may make a counterclaim against you or an additional claim against a third party.

The counterclaim is usually served with their defence; it can be served at any time, but the Defendant requires the Court’s permission to do so. Any person who files a counterclaim will also be required to pay the associated Court fee.

You are required to file a defence to counterclaim within 14 days of service of the counterclaim.

Allocation of your case

After a defence has been filed, the Court will serve a notice of proposed allocation.  This will state the proposed track and require the parties to complete a directions questionnaire.  There are three different tracks that your claim could be placed on; multi track, fast track and small claims track, and the value of your claim will determine which track you are placed on:

  • Multi track – value of over £25,000
  • Fast track – value between £10,000 - £25,000
  • Small claims track – up to £10,000

For multi track cases, there is no limit for how long it can last and this track has a more flexible procedure than the other two tracks which allows for the Court’s directions to be tailored to the individual case.  Fast track cases are likely to last no longer than one day, and would be heard in trial within 30 weeks of being allocated.   Small claims cases are to provide a quick and inexpensive procedure.

For multi track and fast track cases, the winning party will usually recover their costs from the opposing party but this is at the Court’s discretion.  For small claims cases, the winning party’s costs are unrecoverable; however fixed costs of a maximum of £100 for solicitor’s fees and the Court fees can be recovered.  The Court does have discretion to order further costs to be paid by a party if they have behaved unreasonably throughout the litigation.

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.  In the directions questionnaire, you must set out your proposals in relation to the following:

  • Disclosure of documents.
  • Scope and extent of disclosure of electronic documents.
  • Expert evidence that will be required.
  • Witness evidence that will be relied on.
  • Directions, i.e. the procedural timetable for the matter.
  • Possible settlement or reasons why you do not wish to settle at that stage

 

Case Management Conference (CMC)

A case management conference (CMC) is a procedural hearing where the Court gives directions for the future conduct of the case until trial. There may not be a CMC if you and the Defendant have agreed directions or the Court issues its own directions.

If a CMC is held, the Court will usually:

  • Consider the issues in dispute and whether they can be narrowed before trial.
  • Consider the suitability of the case for settlement.
  • Set a pre-trial timetable for the procedural steps required.
  • Fix a trial date or period in which the trial is to take place.

The Court may order that a further CMC be held, particularly in complex cases.  Your CMC must have your legal representative present, and it may also be a requirement that you are in attendance.

Costs Budget

Unless the Court orders otherwise, all parties must file and exchange cost budgets.  Where the value of the claim is less than £50,000, this has to be with the directions questionnaire but in all other cases this must be no later than 21 days before the CMC.

Costs Management Conference

The Court may also list a Costs Management Conference for the purpose of reviewing and settling cost budgets.  This will assist the Court in making costs orders at the end of the matter.

Disclosure of relevant documents

During litigation, you and the Defendant have a duty to disclose and permit inspection of certain documents.  The purpose of disclosure is to make available documents which either support or undermine the case.

This stage in the proceedings is a critical one in litigation and is often time-consuming due to the volume of documents that may be required, attempting to locate those documents as well as reviewing these from the Defendant.

Initially, it will be necessary to identify:

  • What documents exist, or may exist, that are or may be relevant to the matters in issue in the case.
  • Where and with whom those documents are or may be located.
  • The estimated cost of searching for and disclosing them.

Privilege entitles a party to withhold documents from inspection, namely:

  • Legal advice privilege would protect confidential communications between you as our client and us as your legal representatives 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 their legal representative and a third party, provided certain criteria are satisfied.

Without prejudice privilege applies to communications made in a genuine attempt to settle a dispute.

Evidence

The general rule is that you have to prove every element of your case on a balance of probabilities.  Evidence is usually comprised of:

  • Contemporaneous documents
  • Witness statements, which must in their own words.  Witnesses are expected to attend trial to give oral evidence and be cross examined.

Evidence from an expert in the field:

  • This requires Court’s permission
  • It is usually given in the form of a written report

An expert’s overriding duty is to the Court.

Interim Applications

An interim application is when a party seeks an Order or directions from the Court before the trial or substantive hearing of the claim in order to prevent something from happening, for example.  These may be:

  • applications of a minor procedural nature (i.e. more time to do something);
  • applications for more significant case management decisions;
  • applications for specific remedies (i.e. specific disclosure of documents; interim injunctions; and interim payments)

 

Settlements

In the same way that a Court will be keen for you to consider alternative ways of resolving your dispute, it would also encourage you to consider settlement at every stage within litigation.

You can find out more about the settlement options here.

Judgement Before Trial

There are certain situations where a judgment may be reached before you proceed to the trial.

You can read more about these situations here.

Preparation for trial

It is important to be prepared in case your matter does proceed to trial if a settlement or judgement has not been reached.

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 you and the Defendant 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 Trial Bundles

Trial bundles are files of the statements of the case, relevant orders and key evidence that are used by the Court and the parties during the trial.  Preparing the trial bundles is usually our responsibility as your solicitor, but the Court expects co-operation between the parties to agree the documents to be included.  It cna be a time-consuming task, and requires significant planning and attention to detail.

Preparation of skeleton arguments

A skeleton argument is a written outline of your case and arguments, which are usually drafted by counsel.  Each party is required to supply the Court and the other party with a written skeleton argument before the trial.

Trial

At trial, you can choose to be represented by a legal representative or by counsel and your claim will determine who would be most suitable.   The legal representatives for both parties will make oral submissions to the Judge, who will have already seen the submitted evidence, documents and skeleton arguments.

The Judge will make their decision upon the case once the legal representatives have summarised their evidence and their submissions on the law.  A judgment may be given at the end of the trial, or in more complex cases handed down at a later date.

Appeals

If you are unsuccessful, you may appeal the decision with permission of the Court and this must be filed within 21 days of the judgment.  An appeal can only be made on the basis that the decision was either wrong or unjust because of serious procedural, or other, irregularities in proceedings.

Enforcement

The unsuccessful party must voluntarily do what is ordered by the Judge. If they do not, enforcement procedures may be taken requiring the unsuccessful party to comply with the order. Civil judgments are never automatically enforced by the Courts; it is the responsibility of the successful party to enforce a judgment if necessary.

Judgment monies owed

If monies are owed, the judgment debtor should pay voluntarily any money owed under the judgment. If they do not, several enforcement procedures are available:

  • Execution against goods owned by the judgment debtor.
  • Attachment of earnings order, which means a proportion of debt is deducted by their employer and paid to the judgment creditor until the debt paid.
  • A charging order over the property owned by judgment debtor.

Warrants of Possession

In possession proceedings, a landlord can enforce a possession order by requesting the Court to issue a Warrant of Possession if the tenant fails to comply with an outright possession order requiring them to leave the property on a date set by the Court.

A Court Bailiff will attend the property on prior notice to execute the Possession Order and take possession of the property.

The cost of a Warrant of Possession is £121 plus the legal representative’s costs.  You can find out more about possession proceedings by clicking here.

 

If you have questions that we have not answered here, please contact Laura Blakemore on 023 8071 7412 or email laurablakemore@warnergoodman.co.uk.  For more details on the costs involved and funding available for your claim, click here.

To speak to one of our experts please call us