Civil litigation can be a lengthy and costly business. In some countries court proceedings can take years to come to a conclusion, whereas in some others litigation can be faster, but the costs of it can in some cases be prohibitive.
The English civil proceedings belong to the second type of systems. It is therefore essential for any potential client to have a clear idea of how the court case will unfold and of the various possible options available to him.
Stage 1: pre-commencement of proceedings
With every new client it is vital to identify the client’s objectives and how these can be achieved. The first step that must be taken is to conduct a careful case analysis and gather as much evidence as possible in order to properly advice the client on the prospect of success of his potential claim. Furthermore, all the potential defendants must be identified, located and consideration must be given as to whether each is worth pursuing.
The client must also be informed right from the outset how his legal costs are calculated and paid for. On this respect there are various options available to the client (such as conditional fees agreements and after the event insurance as well as legal expenses insurances) and all of them should be carefully discussed with the client.
Another important aspect is represented by the fact that in accordance with the overriding objectives of the Civil Procedure Rules, litigation should be the last resort. A solicitor must always consider with the client what form of alternative dispute resolution would be appropriate. Therefore, a client must always receive a frank and full assessment of the merit of his claim.
Once the funding arrangements and the merit of the client’s claim have been assessed, the steps the parties should take before commencing proceedings are governed by the so called pre-action protocols and pre-action conduct. In practice, the parties should establish what issues are in dispute, share information that is available to each of them concerning those issues and endeavour to resolve those matters. Failure to follow a protocol step or its spirit, without good reason, will usually incur a sanction for that party if litigation is commenced.
Immediately after collecting sufficient evidence to substantiate a realistic claim, and before addressing issues of quantum in detail, the potential claimant should send to the potential defendant a letter detailing the claim. Enough information must be given so that the prospective defendant can commence investigations and at least put broad valuation on the claim. Subsequently, the prospective defendant should acknowledge safe receipt of the letter of claim and, after investigating the matter, should state whether or not liability is admitted. Reason should be given if liability is denied and when contributory negligence is alleged, the prospective claimant should respond to such allegation before issuing proceedings.
Stage 2: commencement of the claim
Before starting a court case, the client should be fully aware of what will be involved. That is more than the chances of success and the pros and cons of litigation. The client should have a good idea of what happen next, as well as how long that might take and the likely cost. In particular, the client should appreciate that the court will impose a strict timetable of steps that must be taken.
The client should keep relevant documents safe and must be clear to him or her what documents which are harmful to his or her case will have to be shown to the other side. In fact it is an well established principle that litigation in England and Wales is conducted “cards face up to the table” and the parties of the proceedings must show each other all the documents that are under their control.
Furthermore, the client’s expectation must be carefully managed and he must be informed that if he wants to stop the litigation at any time, he will have to pay the opponent’s costs, unless a more favourable settlement can be negotiated.
Proceedings are started by lodging at a country court or High Court of Justice a completed claim form. To activate the claim, this must be served on the defendant. Full details of claim, called particulars, must also be served on the defendant. If the defendant wishes to contest the claim, he must file at the court and serve to the other claimant a defence. This triggers the allocation in the county court the allocation of the case to a particular “track”.
A claim of up to £10,000 will usually be allocated to the small claims track. Typically, these claims concern consumer disputes and the court does not expect parties to be leally represented. Claims exceeding £10,000 and up to £25,000 are usually allocated to the fast track. Whilst parties will usually have legal representation on this track, the court will tightly control costs, as well as the type and amount of evidence each party can relay on. In particular, the expectation is that a single join expert should be used by the parties where expert evidence is necessary, and the trial should be conducted within one day (effectively five hours). Claims exceeding £25,000 are usually allocated to the multi-track. A claim cannot be started in the High Court unless it exceeds £25,000, all claims in that court are dealt with on the multi-track.
Stage 3: interim matters
Once on a track, the court carefully manages a case. Directions will be given to the parties as to the steps that must be taken to prepare for trial. A strict time table will be imposed as to when each step must be taken. On the small claims track and fast track the expectation is that these directions can be given without any court hearing. In multi-track cases of any complexity it is usual for the parties to meet with a judge as a so-called case management conference in order clearly to define the issues in dispute and determine what steps need to be taken and when, in order to prepare for trial. The most common case management directions are for:
(a)Standard disclosure (ie, the parties list the documents in their possession that they intend to rely on, or which are adverse to their case, or support an opponent’s case); and
(b)The exchange of evidence before trial that the parties intend to rely on (eg, experts’ reports and statements, known as ‘witness statements’, of non-expert witnesses).
Whatever the track, the parties will be working towards either a known trial date, or at least a period of time in the future when the trial will occur.
In addition to case management directions, parties may during this stage apply to the court for any specific orders that might be required (eg, to force an opponent who has neglected to take a required step in accordance with the timetable to do so on pain of having his case thrown out by the court).
Stage 4: trial
A trial on the small claims track is informal and conducted at the discretion of the judge. The formal rules of evidence apply on the fast track and multi-track. At the end of a fast track trial, the judge will usually have resolved all issues (ie, liability, quantum (if relevant) and costs). As to costs, the judge will decide if any party should pay the other’s costs and, if so, how much. This is known as a summary assessment of costs. The parties must provide each other and the court with a detailed breakdown of costs for this purpose. On the multi-track, the trial judge will decide who should pay costs. The general rule is the loser pays the winner’s costs. If the parties cannot subsequently agree on the amount of those costs, they are determined post trial by a different judge, known as costs judge, via a process called detailed assessment.
Stage 5: post-trial
On all tracks a party may decide to appeal all or part of the trial judge’s decision. In a multi-track case, a detailed assessment of costs as awarded by the trial judge will take place if the parties cannot agree on the amount.
A party awarded damages and/or costs will expect to be paid by the date set by the court. What if that does not happen? The party will have to apply to the court to enforce the judgment. Most commonly, this involves instructing court officials to attend the debtor’s premises and to take his belongings to be sold at public auction. The proceeds are then paid to the party. It is therefore vital to ensure that at stage 1 steps are taken to check that any potential defendant are actually worth suing.