News

Civil Litigation from both sides

19 April, 2022

Litigation is the principal means by which parties in England and Wales attempt to resolve civil disputes.

The process is governed by the Civil Procedure Rules (CPR), and each party has to persuade a judge of the merits of their case on the balance of probabilities.

The rules vary depending on the value of the claim and the nature of the case.

Each case has its own unique elements, but proceedings themselves usually follow similar steps. 

Before proceedings commence

Both the claimant and defendant may choose to be represented by a legal professional, although it is possible to represent yourself.

Civil litigation proceedings can be complex, and every opportunity should be taken to reach a resolution before it reaches court.

A solicitor should explore every avenue to do so before formal legal proceedings are initiated.

One of the means through which this is attempted is Pre-Action Protocol.

This invites the respective parties to exchange information and either settle the issue or at least narrow its scope.

If that proves unsuccessful, the matters of real and ongoing contention are then brought before the court.

Taking the issue to court

If court action cannot be avoided, the claimant can commence proceedings.

This is done by issuing a claim form to the appropriate court for their case.

That same form is then served on the defendant, and usually contains details of the claim’s particulars and any key points underpinning it.

The legal basis will be clearly outlined as well as the resolution the claimant is seeking. 

The defendant has to respond in writing to the claimant’s points within 14 days.

Alternatively, they can send an acknowledgement of service to the court within the same period, which gives the defendant 28 days to outline their position.

Taken together, the particulars of claim, the defence, and any subsequent reply are referred to as ‘pleadings’.

Case Management Conference

The next step is typically the Case Management Conference (CMC).

This involves the parties attending a hearing where a judge will look to establish how the case will be managed right up to trial.  The CMC can also be used to set limits on the parties’ costs (known as a Costs and Case Management Conference). 

This is likely to be the first time that the parties will have to appear before the court. 

Disclosure

The first direction given by the court at a CMC will usually involve disclosure where each party makes available relevant documentation relating to the claim.

That might include papers, email correspondence, mobile phone communications, and deleted electronic data.

The objective at this stage is to declare anything that supports the case of those involved in the litigation however, parties are also required to disclose documentation that could potentially support the other party’s case and adversely affect their own.

Witness statements and expert evidence

Witness statements that can provide additional detail of the dispute, and back up documentation supplied, will be required.

These should provide factual evidence rather than giving an opinion.

Witness statements are typically prepared by a solicitor based on the words of the witness, who then signs it.

Expert evidence may also be needed, and the court reserves the right to direct each party to appoint a single joint expert or allow them to instruct their own.

They will provide a written report, which is sent to the court and the opposing party.

The court can ask experts to attend trial to be question on their opinion.

Pre-trial review

Finally, a pre-trial review (PTR) verifies that the parties involved in litigation have complied with the timetable and any other court orders.

It fixes a date for trial and finalises an appropriate timeframe along with a list of issues to be determined.

The court will also consider any remaining opportunities for alternative methods of resolving the dispute without a trial.

At the trial

If all attempts at resolution have failed, the parties will usually instruct barristers to present their case to the judge.

The role of a barrister is to explain the law, presenting any relevant case law if appropriate, as well as drawing the court’s attention to relevant documents.

They will also cross-examine the opposing party’s witnesses and experts, who will also give their evidence. 

At the conclusion, the judge will make a decision.

This may be delayed until later so they sufficient time to consider all the evidence presented.

Once a judgement has been made, any sum of money ordered to be paid from one party to another must be honoured.

If there are any difficulties enforcing a judgement or costs order, options to recover the money include instructing bailiffs, petitioning for bankruptcy, or making an order of sale. 

For more information about civil litigation proceedings, either as a claimant or defendant, contact the professional and experienced team at Richardson Lissack.