What is litigation?
Litigation is the process by which an individual or a business takes legal action against one or more parties to resolve a dispute. Litigation in England and Wales is governed by a procedural code known as the Civil Procedure Rules (“CPR”). The aim of these rules are to enable the courts to deal with civil cases fairly.
It is generally accepted that litigation should be used as a last resort. There may be other methods of resolving the dispute which are available to the parties these are known as Alternative Dispute Resolution ("ADR").
ADR could include direct negotiation and/or mediation (the use of an independent person to assist the dispute that is binding on the parties). Each of these methods has strengths and weaknesses and ADR may not work in all cases, but it is important for the parties to try and resolve a dispute before commencing court proceedings.
You must consider whether any of these methods are appropriate prior to issuing a claim at court and at various different stages throughout litigation. The court will expect all parties to have considered whether ADR is appropriate before and during litigation.
The pre-action stage
The parties are expected to try and resolve a dispute before a claim is issued at court. This is known as the pre-action stage. All actions taken to resolve a dispute by prospective parties before court proceedings have been issued are referred to as ‘pre-action conduct’.
Pre-action protocols are a series of steps that the court expects the parties to follow before a claim is issued at court. There are currently 13 protocols in force that apply to certain types of claims for example:
- professional negligence
- personal injury
- construction and engineering disputes
- clinical disputes.
Pre-action protocols are approved by the Court and can be found online in the CPR. In cases where no specific protocol applies the Practice Direction - Pre-Action Conduct and Protocols will apply.
The protocols may specify that a party wishing to begin a claim must send a “Letter before Claim” to their opponent, setting out the details of the claim, what they want and if money, how the amount is calculated. The opponent must respond to the letter before claim confirming whether the claim is accepted and if it is not accepted the reasons why.
The parties are also encouraged at an early stage to send to each other documents relevant to the issues in dispute. Failure to comply with the Protocol or practice Direction may result in cost penalties against the non-compliant party (see Costs below). If no response is provided or the claim is not accepted, this opens the door to the party making the claim to issue a claim at court (See Issuing a claim below).
The Limitation Act 1980 sets out various time limits during which a potential claimant can issue for specific types of claims. For example, breach of simple contract claims have a limitation period of 6 years. If a potential Claimant delays for more than 6 years the other party will have a Defence. Time begins to run from the date of breach.
Before commencing a claim, it is of paramount importance that a party wishing to make a claim, checks that the time limit for making the claim has not expired. If the limitation period has expired the claim will be statute barred and the opportunity to make a claim will have passed.
The Court may make orders both before a claim is issued and during litigation to restrain a person from beginning or continuing an action threatening or invading the legal right of another, or compelling a person to carry out a certain act. These orders a called “Injunctions.” An example may be an application to freeze an opponent’s assets. This may be required if your opponent plans to put assets beyond the reach of the Court.
The opponent’s financial position
Prior to issuing a claim consideration should be given to whether the party you are claiming against has sufficient funds and/or assets to meet your claim. If the party receiving the claim does not have sufficient funds or assets to pay a financial award and the costs awarded to you by the Court you may consider not to be worth commencing a claim. If you suspect that the party you are claiming against is unlikely to have sufficient assets to satisfy the claim we can arrange production of a report detailing known assets and liabilities of debtor companies and individuals.
Perhaps one of the most important things to consider before making or if you are a party to litigation is how you will fund your legal costs.
Litigation is likely to be time-consuming and expensive. This may make instructing solicitors to act for you in low-value disputes unappealing as the costs of bringing the case would outweigh the amount disputed.
In litigation, the general rule is that the unsuccessful party pays the successful party’s costs. However, there are certain circumstances where a successful party could be liable for the unsuccessful party’s costs (see Costs below). Usually the loser will be ordered to pay 60 –70% of the winner’s costs therefore, the winner will still be liable to its legal representation for the unpaid portion.
You may have insurance cover which you should investigate It may also be possible to arrange After the Event insurance cover for you. This may provide an alternative source of funding for their claim.
A claim is a legal demand by an individual or a business for compensation, payment or reimbursement from an individual or business for a loss or harm suffered.
To issue a claim, a document called the claim form must be sent to a Court –this is known as ‘filing’ a claim. The claim form contains a summary of your claim and information such as the names of the parties, the nature and value of the claim. A court fee is payable when filing a claim. The court will then “issue” the claim, by entering into the courts records and giving it a claim number.
The party first at court is the Claimant. The party which the claim is being made against is the Defendant. Once the claim has been issued by the Court the Claimant has 4 months from the date of issue to send (‘serve’) the Claim Form on the Defendant. There are very strict rules on how a defendant must be served.
In straightforward matters the claim form is usually accompanied and served with the particulars of claim, which is a comprehensive document setting out in detail the allegations being made against the Defendant and the losses suffered by the Claimant. If the particulars of claim are not served with the claim form it can be served separately but must be served no later than 14 days after the claim form has been served.
After the particulars of claim have been served the defendant must respond within 14 days of service in one of the following ways:
- File or serve an admission to the claim whether in full or in part;
- File a defence to the claimant court and serve a copy on the claimant.
- Where a claim is admitted only in part the defendant should file both an admission (confirming what aspects of the claim are admitted) and a defence (setting out what aspects of the claim are denied and reasons why).
- File an acknowledgement of service if more time is required to respond to a claim. This will allow the Defendant a further 14 days (28 days from the date of service of the particulars of claim) to respond to the claim.
A defendant may issue a counterclaim with the defence (which is a separate claim against the claimant and is based on the same or related facts) if the defendant has suffered losses as a result of the dispute. It is important that a response is provided within the above timeframes as failure to do so could result in the defendant being unable to put forward a defence to the claim.
The defence must deal with each issue raised in the claim form and in particular – you can respond to these by stating if each allegation is:
- Neither admitted nor denied, but is to be proved – by the Claimant using evidence, this part of the claim
A defendant may issue a counterclaim with the defence (which is a separate claim against the claimant and is based on the same or related facts) if the defendant has suffered losses as a result of the dispute.
It is important that a response is provided within the above timeframes as failure to do so could result in the defendant being unable to put forward a Defence to the claim. Upon receipt of a claim the defendant should consider whether ADR is appropriate. These alternative methods of resolution may assist the parties in reaching early settlement.
The documents formally describing and answering a claim are known as the “Pleadings”. Those documents form a vital guide used by the Court in deciding a case.
Once the parties have formally set out their cases in the Pleadings the court will invite the parties to complete ‘Directions Questionnaires’ to provide further information about their case to the court. This will be information that allows the court effectively list the claim for trial eg, the number of witnesses needed or what kind of expert evidence is required – if at all.
The parties will be asked to file and, if possible, agree proposed directions (a timetable for the exchange of evidence such as witness statements, disclosure, expert reports as well as procedural matters to manage the claim to trial. The Court may approve the agreed directions or it may set its own directions.
As part of the court’s active management powers, it may decide a hearing called the ‘Case Management Conference’ (the CMC) be heard to decide the future conduct of the case.
During this process the Court will allocate the case to a ‘track’. The allocation of a claim to a track depends on the value or complexity of the case. A ‘track’ is a defined, procedural route which dictates how a claim will progress and the allocation stage is part of the court’s case management powers which are designed to ensure the claim is dealt with justly and efficiently. These tracks have different rules to cater to the different types of claims.
These tracks are
- the Small Claims Track
- the Fast Track; and
- the Multi Track.
The Small Claims Track deals with claims with a value below £10,000 and is suited to smaller disputes or more straightforward claims which do not require the involvement of legal representatives. The proceedings are much less formal (eg. less strict rules of evidence) and very limited costs are recoverable by the successful party.
The Fast Track deals with claims between £10,000 and £25,000 and cases assigned to it are likely to last no more than a day at trial. Other rules apply including those relating to the use of experts, disclosure and witness evidence. There are also fixed timetables and fixed costs aimed to streamline and speed up the process.
Claims with a value above £25,000 are allocated to the Multi Track. These cases can sometimes be quite complex or simply worth a high value. The Multi Track is therefore more flexible than the other two tracks but is subject to more active costs and case management by the court.
In the Multi Track the Court requires the parties to undertake “Cost Budgeting”. The Cost Budget is a document that sets out in detail the predicted costs of each stage of litigation up to and including the trial.
A costs budget is set out in a document called the ‘Precedent H’ and can be very complex due to its comprehensive nature. It is common for costs draftsmen to be instructed to prepare the Precedent H.
Generally, where the value of a claim on the claim form exceeds £25,000 but is less than £50,000, cost budgets must be exchanged between the parties and sent to the court with the Directions Questionnaire.
In any other case the budget must be filed and served no later than 21 days before the case management hearing. It is important for the parties to do this and to serve this in time otherwise the successful party will be limited to recovering only the court fee (unless the court orders otherwise) – and nothing else.
The parties should try to agree the costs for the different stages of litigation where possible. However, if no agreement can be reached the court will examine the costs budgets and will make a final decision on the party’s legal costs. After the trial the court will assess how much of the successful party’s costs are recoverable in accordance with the previously approved costs budgets (see Costs below). Increasingly, the CMC is also being used to deal with the issue of costs, allowing the courts to scrutinise the partys’ cost budgets. These types of hearings are called Costs and Case Management Conference (CCMC).
Disclosure is the process in which the parties to a claim disclose to each other documents relevant to the claim. A ‘document’ for the purposes of disclosure is anything capable of recording information (eg. photographs, emails, CDs, computer programs etc).
At this stage parties are usually required to give standard disclosure this includes all documents that the parties currently have in their control or have previously controlled and which they intend to rely on at trial. This also includes the disclosure of documents that may be harmful to a party’s claim and supportive of the other party’s claim. When giving standard disclosure a party is required to make a reasonable search for document and this will depend upon the number of documents, nature, complexity and the expense of retrieving any particular document.
Documents subject to disclosure are usually recorded within a court form called the “list of documents”. In this form a party should list in chronological order the documents that it has which are available for inspection, documents which are no longer in the party’s control, documents that are available but the party objects to inspection of the same, where the documents are located and how they are stored. Lists of documents are exchanged between the parties. Once a party has received its opponent’s a list of documents they have the right to ask to inspect documents from that list.
Certain documents which are subject of “privilege” do not have to be disclosed.
Due to the importance of Disclosure, it is therefore highly important to preserve documents – in fact you have a duty to do so – once litigation has commenced or once you become aware litigation is likely. You must be careful not to dispose of documents or delete files that are likely to be relevant to the claim. Furthermore, the duty of disclosure continues until proceedings have concluded and thus applies to any documents created or coming into your control during the course of proceedings.
Once disclosure is completed, the court typically orders the parties to exchange witness statements. A witness statement sets out the evidence a witness will give orally at trial. It must also be verified by a statement of truth signed by the witness.
A statement of truth must be included in any pleadings, witness statement, expert’s report, and confirms that the facts stated in the document are true. If witness statements are not exchanged in accordance with the deadline given by the court, this may result in the witness not being allowed to give evidence at the final hearing.
When you call a witness to attend the hearing to give oral evidence your barrister will ask them questions with the aim of extracting evidence from them to support your case. They may also be cross-examined by your opponent’s barrister with the purpose of, challenging your witness’ evidence and credibility. The outcome of a trial can rest heavily on witness evidence therefore, it is vital to identify witnesses at an early stage and to confirm if they are willing and available to assist at the trial.
Not all cases will require an expert to provide evidence but where specialist or technical knowledge is
required, an expert will be called to assist the judge in addressing issues within their expertise/knowledge. You may instruct an expert to obtain a report but you will require the court’s permission to rely on expert evidence at trial. Permission is obtained by providing their details and reasons for requiring an expert in the Directions Questionnaire.
Often, the parties instruct their own experts but the court does have the power to order a single joint expert– instructed by both parties. In some cases, where the parties have instructed their own experts the court may order discussions between experts to narrow the issues for trial and encourage the experts to agree on common issues. A report is normally prepared by the experts for the court. Like other witnesses, the expert(s) may be called to give oral evidence at trial and/or be cross-examined.
Expert witnesses have a duty to the court to assist in all matters within their expertise. This overrides any duty owed to the party instructing them. Expert witnesses can be instructed in the early stages too – such as during the pre-action stage if you are the Claimant – to provide an opinion. The parties must also bear in mind the costs of instructing an expert, and these fees must be paid in addition to their legal fees. Experts can be costly particularly if the case is highly complex or involves large volumes of documentation. Whilst this is something to bear in mind an expert opinion can be vital to understanding the strength of your case.
Your legal representative will likely instruct a barrister to argue your case before the court at a trial. It is common for a barrister to be part of your legal team at an early stage in a dispute. A legal representative will select a barrister based on their specialism, skills and expertise which makes them suitable for the dispute. You may see some barristers referred to as ‘Queen’s Counsel’; usually their names will end with the title ‘QC’. Only a limited number of barristers are appointed as QC and this appointment represents a mark of outstanding ability. All other barristers who are not appointed as QCs are referred to as junior barristers – or ‘juniors”.
Generally, a QC is seen to be more skilled, more experienced and is more costly than a junior. A barrister can add value to a dispute, by:
- Providing an opinion on the merits of your claim before proceedings have been issued;
- Drafting legal documents;
- Providing legal advice where they have particular expertise or experience – this can be at any stage of litigation;
- Attending interim hearings on behalf of a party.
After the exchange of witness evidence the parties may be invited by the court to complete ‘pre-trial checklist’ (usually at least 8 weeks before the trial date). They allows the court to check if previous directions have been complied with, to confirm whether any further directions are required before the Trial and if not, to set a date for the trial. Parties must include details of their experts, witnesses, barristers and their availability.
Parties are required to file and serve pre trial checklists with the court and each other by a date specified by the Court. If parties have not filed pre-trial check lists on or before the date specified, they run the risk of their claim, defence or any counterclaim being struck out. Once the pre trial checklists have been filed and no further directions are required the court will fix the trial date, time, location and will give a time estimate for the trial.
When the trial date has been set the parties will need to ensure that the following documents are prepared:
1. Trial bundles
The parties will need to send a trial bundle to the court no more than 7 days and no less than 3 days before the trial. The trial bundles will become the folders from which the judge and the parties will work from and will refer to during the trial. The trial bundle usually contains the pleadings, disclosure documents, witness statements, expert reports and required correspondence. Wherever possible, the parties should try to agree the contents of the bundles before it is filed at court.
2. Case summaries
The court will expect the parties to include a case summary in the trial bundle. This document will provide the trial judge with a brief overview of the facts of the case and the issues in dispute. The parties should try to agree (where possible) the contents of the case summary before sending it to the court.
3. Skeleton arguments
A skeleton argument summarises the arguments and authorities (previous case law, legislation, etc) upon which a party intends to rely on at the trial. The skeleton argument is usually prepared by your barrister but can be prepared by your solicitor. This document must be filed at court and exchanged with the other side at least 3 days before the trial.
4. Witness summons
If you have doubts about the attendance of a witness a witness summons is issued by the Court requiring a witness to attend court.
Both the Claimant and the Defendant can inform each other prior to and during the litigation process of what they will accept or offer to resolve a dispute. Parties receiving an offer should consider the same carefully as a failure to accept a reasonable offer could result in cost consequences.
Part 36 offers
The aim of a Part 36 offer is to encourage your opponent to settle without going to trial. Part 36 offers are generally open for acceptance for 21 days. These offers consequences in terms of higher costs and interest that a party may face if it rejects a reasonable offer to settle. The earlier the offer is made the better the protection it affords.
As an alternative to Part 36 offers a party, often the Defendant, may make a calderbank offer. These types of offers are more flexible than a part 36 offer and can still afford the party making the offer costs protection.
During the trial preparation stage both parties should re-consider existing offers to settle and or whether to make any further offers to settle. If the parties are able to settle before the trial, you must notify the court – otherwise costs penalties may be imposed.
The trial commences with the Claimant’s barrister setting out their case, followed by the Defendant’s barrister making its submissions. Evidence will then be heard from witnesses and experts. Both parties will be given the chance to challenge witnesses and experts during cross-examination. Barristers for both parties will then make their closing submissions to conclude their case.
The judge then considers all the issues and evidence presented by the parties during the trial before coming to a decision on the case: this final decision is called the judgment. This judgment can be given in court immediately after the trial or it can be delivered at a later date either in writing or at a hearing.
The unsuccessful party is usually ordered to pay the costs of the successful party. Only in exceptional circumstances does a party recover the full amount of their legal costs incurred. The decision of the unsuccessful party’s liability for costs is subject to the court’s discretion, reviewing whether the conduct of the parties both before and during the proceedings was reasonable and/or proportionate.
Examples of behaviour that could be considered unreasonable or disproportionate:
- refused to engage in ADR:
- rejected a reasonable settlement offer from the other side;
- incurring 'wasted costs' by making unnecessary applications; or
- withholding information at the outset or during disclosure.
The court decides how much is to be awarded to the successful party in respect of their costs, either immediately at the end of the trial (‘summary assessment of costs’) or after the parties have submitted a bill of costs which details all work carried out by the legal team and the costs of this work. This will be examined by the court and the final amount to be paid decided at a hearing (‘detailed assessment’).
If costs budgets (see Costs Budgeting above) have previously been approved by the court, the court will use these to assess how much of the successful party’s costs are recoverable, broadly complying with the amounts set out in the approved costs budget.
- incurring ‘wasted costs’ by making unnecessary applications; or
- withholding information at the outset or during disclosure.
You may be able to appeal the outcome of the trial if you feel this was unsatisfactory or if you were
unsuccessful. However, there are few circumstances that allow you to appeal – these are called ‘grounds’ and these are very limited. These grounds are if the decision was:
- Wrong due to an error in law or a misunderstanding of fact, or;
- Unjust due to a serious procedural irregularity.
Following the conclusion of the trial, it is necessary to apply for permission before you are able to pursue an appeal. Permission is only granted if there is a real prospect of success or any other compelling reason for the appeal. This is called the permission test. In addition, if you do wish to appeal you must apply to do so no later than 21 days from the date of the original decision.
It is important to note that an appeal will be limited to reviewing the decision and will not act as a second attempt at a trial. Fresh evidence will not be allowed at the Appeal hearing. Further there is also a reluctance to overturn a judge’s findings of fact (especially if this was based on witness credibility).
While you may have been successful at trial this does not necessarily mean the court process is over. A successful Claimant will receive a judgment at the end of the trial . This judgment could include an award of ‘damages’ as compensation for losses suffered.
If the Defendant doesn’t pay you will need to consider enforce the judgement. There are several methods of doing so, including:
- instructing the High Court Enforcement Officer to seize their goods up to the value of the judgement debt;
- Applying for a charging order over property to secure the value of the debt against their property.
When used in conjunction with an order for sale, the unsuccessful party can lose their home if the judgement debt is not paid;
- Initiating bankruptcy or winding up proceedings;
- Applying for an attachment of earnings – which if granted will result in payments being made to the successful party from the unsuccessful party’s salary until the judgement debt has been paid or;
- Applying for third party debt orders to secure the judgment debt against any monies held in the opponent’s bank account or any trade debts owed to them by other parties. The court may order that these debts be paid directly to you.
You must decide the option or options you believe are most likely to be successful.