If you are involved in a dispute or are contemplating civil litigation the process may not be familiar to you. We are solicitors in Cambridge and can advise on any aspect of the process including how best to pursue or defend a claim. Contact Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk
What follows is a simplified overview of the civil litigation process in England and Wales that applies to cases going to County Court and the High Court. The matters are listed in the order in which they generally arise if they are applicable. Civil cases are governed by the Civil Procedure Rules (CPR).
Overriding Objective
The first CPR rule underpins all civil litigation. It is known as the “overriding objective” which is for the courts to deal with cases justly and at proportionate cost. Judges take account of the overriding objective by dealing with each case in a way that is proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party. Judges aim to save expense and ensure that each case is dealt with expeditiously and fairly.
Before the claim
The courts expect the parties to co-operatively share information and documents relevant to the dispute before proceedings are started. Pre-action disclosure can facilitate early settlement. The aim is to avoid the need for legal proceedings where possible. The pre-action protocols apply to different categories of cases and are to ensure that information is shared by the parties. There is not a pre-action protocol of every kind of dispute. However, in all cases except small claims the claimant should send a “letter before claim” to the defendant. This shows the details of the claim, the remedy sought, and lists the key documents on which the claim is based.
Alternative dispute resolution
The letter before claim might also invite the defendant to agree to some form of alternative dispute resolution (ADR) procedure, such as mediation. In some disputes it may be possible to find a less costly way of resolving the dispute without using the courts. The system encourages parties to consider this.
Statements of case
Both parties prepare “statements of case” that contain the details of the case they wish to advance. These must be sent to court and served on the other party. The claimant’s statements of case are the claim form and the particulars of claim. The former contains a concise statement of the nature of the claim and the remedy sought. It is sent to the court with the court fee. The court fee will be based on the value of the claim. The current court fees are available online at http://www.justice.gov.uk/courts/fees The particulars of claim set out the full details and facts of the claim.
Acknowledgement of service
The defendant must file an acknowledgment of service stating whether he intends to defend all or part of the claim.
Defence
Unless the defendant admits the claim, he must file a defence. The defence says which allegations in the particulars of claim the defendant admits, denies and which he neither admits nor denies but which he requires the claimant to prove. Reasons for denial as well as an alternative version of events must be included. If a defence is not filed this may lead to a default judgment which means that the defendant is judged liable for the claim without the need for a trial. This highlights why it is important to respond to claims received to avoid being automatically held liable.
Counterclaims and additional claims
The defendant may make a counterclaim against the claimant or an additional claim against another party to the claim or a third party. Often this is done at the same time as submitting the defence.
Summary judgment
Summary judgment is a way of obtaining judgment early without a trial. Either party can apply. Summary judgment will be granted if either the claimant can establish that the defence or the defendant can establish that the claim (a) has no real prospect of succeeding and (b) that there is no other compelling reason for a trial.
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 (a) there are no reasonable grounds for bringing or defending the claim (b) the statement of case is an abuse of process or (c) there has been a failure to comply with a rule or court order.
Directions questionnaire
To help the court allocate the case to the appropriate track and to best decide how the case should be conducted it sends a directions questionnaire to each party. The parties must set out proposals about disclosure of documents and electronic documents, expert evidence, witness evidence, the timetable, and possible settlement if any.
Case management conference
Usually a case management conference (CMC) is held. This is an administrative hearing at which a timetable and orders for the conduct of the case are determined. Typically, the court considers the issues in dispute and whether they can be narrowed before trial; considers the suitability of the case for settlement; sets a timetable for the disclosure of documents, exchange of witness statements and expert reports; and fixes a trial date.
Part 36 offers
A Part 36 offer is an offer by a party to settle the claim that complies with the requirements in Part 36 of the CPR. The rules provide for costs consequences where there has been a Part 36 offer that was not accepted and the party to whom the offer was made then fails to achieve a better result at trial. Part 36 offers are used tactically. They can put the other side under pressure to settle.
Disclosure and inspection of documents
“Disclosure” is when each party makes documents available which are relevant to the case. A party must disclose all relevant documents regardless of whose case they support. This may include documents that are harmful, sensitive or confidential. Documents are disclosed by listing them and serving the list on the other party. After exchanging lists of documents each party is entitled to inspect the other’s disclosed documents. This is often done by exchanging copy documents.
Witness statements
Anyone giving witness evidence at the trial will need a prepared witness statement which will be given to the other party well in advance of the trial so that they can prepare their cross examination. Witness statements are generally written by solicitors based on interviews with witnesses.
Experts
Expert evidence is used where the case involves matters on which the court does not have the technical or academic knowledge or the case involves foreign law. The court’s permission to call expert evidence is always required. The court may order that expert evidence is to be given by a single joint expert who is instructed on behalf of both parties. This is not common in multi-track cases where the parties have their own rather than shared experts. Expert evidence is usually given in the form of a written report which is included in the bundle.
Bundle
The trial bundle or bundle is a file or files of the evidence, statements of case and court orders that are used during the trial. Preparing and paginating the trial bundles is often the responsibility of the claimant’s solicitors. Co-operation between the parties to agree the contents of the bundle is expected.
Skeletons
A “skeleton” or skeleton argument is a written outline of a party’s case and legal argument. Each party has to produce a skeleton argument before the trial. They are constructed and drafted by lawyers. If you need a skeleton argument we will be happy to assist. Skeleton arguments help the judge to understand the arguments that will be put forward at the trial by the respective advocates.
Judgment
The judgment may be given immediately after the trial. Often it is “reserved” for a later date, particularly in complex cases. If judgment is reserved the decision will not immediately be known at the end of the trial.
Costs
A successful claimant will usually be entitled to recover costs from the defendant. If the claimant loses, he or she is likely to have to pay the other party’s costs. The court has the power to make a different costs order. It will take into account the conduct of the parties and any Part 36 offer or other admissible offers to settle the case. It is very unusual for a party to be able to recover all of the costs he or she has incurred.
Appeals
The unsuccessful party can apply for permission to appeal. The only grounds for appealing are that the judgment was (a) wrong because there was an error in law, fact or exercise of discretion or (b) was unjust because of a serious procedural or other irregularity. Notice of an appeal must be filed within 21 days of the judgment or order.
If you are looking for Cambridge solicitors specialising in civil litigation and dispute resolution, contact Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk