Kate Barnes, Head of Dispute Resolution Kerseys, gives an overview of the civil court process.
Legal advice on the merits of a claim and procedure should be sought in all cases to avoid unnecessary problems and cost later. Also, many types of case have peculiarities in their procedure although, other than possession of property cases which must be distinguished from this overview, most follow the broad outline below.
The person who is bringing the claim is called the “Claimant”. The person who receives the claim is the “Defendant”.
Before starting the claim
Whilst a Claimant is not prevented in law from going straight to court without corresponding and attempting to resolve a dispute first, the courts discourage such an approach and may well disallow legal costs against the Defendant even if the Claimant succeeds completely with his case.
There are procedures called ‘pre-action protocols’ for some specific types of case, such as professional negligence and construction disputes, and a general protocol for all others. These, broadly, set out procedures for exchange of letters setting out the case for and against the claim and the disclosure of key documents. If the protocols are followed and no resolution has been reached then you may need to go to court.
Starting the claim
If court proceedings are necessary, the Claimant starts by filing a Claim Form at the county court accompanied by, or in simple cases incorporating, a longer document called the ‘Particulars of Claim’. The appropriate court fee has to be paid and copies provided for the court to send to the Defendant.
The Defendant has 14 days from receipt (known as “service”) of the Claim Form and Particulars of Claim to file an admission, accompanied with a proposal to pay if applicable, or an intention to defend. If the latter the defendant will then have a total of 28 days from service to file a defence unless the Claimant agrees, or the court allows, a further extension of time.
Progress through the court
If the claim is defended, the next stage will be the court ordering both parties to complete a Directions Questionnaire. This is a procedural document which requires detailed information not about the merits of their case but about where they want the case to be held, how many witnesses (which will in part determine how much court time needs to be set aside), whether there is a need for expert evidence e.g. a surveyor (often in a building case).
When these Directions Questionnaires have been sent to the court (or “filed”), the papers will go to a judge who will give a list of thing to be done with time limits (known as “directions”) as to how the case should proceed to trial. Sometimes, whether in response to a request from one or both parties or of its own initiative, the court fixes a hearing to decide procedural issues.
A hearing might be necessary if there is a dispute as to whether expert evidence is necessary, or if it is, how it should be progressed. The court’s preference is often for there to be a single joint expert reporting to the court rather than two experts i.e. one for each party. The court may also make a direction for the claim to be paused (“stayed”) for mediation to be attempted to resolve the case (see our mediation page).
The court will also assign the case to a ‘track’, usually depending on its monetary value. The small claims track is currently for claims under £10,000. In a small claim the procedure up to and at trial will be more informal than on the higher tracks and the legal costs of representation are not recoverable by the winning party against the losing party with certain exceptions. Claims over £10,000 but less than £25,000 will be “fast track” and claims over £25,000 “multi track”.
For larger claims both parties will be required to prepare an estimate of the legal costs that will be incurred in taking the matter to trial. The court may order a hearing at which the judge can fix a budget for the claim.
Moving the claim on
You will need to comply with the court directions. In many ways this is the most important and certainly the lengthiest stage and comprises all actions that have to be taken until a case gets to trial when a judge will make a decision.
The actions needed vary tremendously depending on the type of case: it is difficult to compare directly a £million commercial building dispute with a neighbour dispute over boundaries. But broadly all cases will involve exchange (“disclosure”) of relevant documents (including emails, text messages and photographs etc.) and careful drafting of witness statements.
Witness statements form the evidence which a witness can be cross-examined upon at trial. In many cases the obtaining of expert reports and written questioning of experts will form another sub-stage. Your solicitor will be in regular correspondence with your opponent’s solicitor in progressing these sub-stages as well as keeping an eye on any opportunity to settle the case on terms favourable to you and/or in accordance with your instructions, as well as advising you throughout on whether the merits and ability to enforce a judgment has changed as the case progresses.
Witness Statements in particular can be very revealing and lead to some reappraisal of the strength of the case sometimes by the solicitor of his/her own client’s case but, more often, of the other side’s, after statements have been exchanged.
Preparation for trial
In larger cases there is usually a Listing Questionnaire/Pre-trial Checklist stage which is like the Directions Questionnaire, although nearing the end of the case not the beginning, and deals with confirmation as to whether all directions have been complied with as well as information necessary for listing for trial. In other cases the hearing date is set without reference to any further questionnaire. The claimant will need to pay the Hearing Fee.
This is when the court will make a decision on the claim. It is worth pointing out at this point that only a small percentage of cases end up with a trial. This is because if a coincidence of both parties’ views of the strength of their position and willingness to negotiate (obviously often connected) is not apparent before proceedings, it can often become apparent as the case progresses, particularly as the case continues to be reassessed when legal documents and evidence have all been exchanged. Also cases settle to avoid the continuing cost of proceedings as well as the risks of an unfavourable outcome. Often cases proceed to mediation which you can read about by clicking here to go to the mediation page.
At a trial there are set rules for how it is conducted which I will not deal with in this article as it requires a separate one – see my article “Will there be a Jury?“.
The judge will adjudicate the facts and decide any issues of law after hearing argument. He or she will then decide who ‘wins’ and ‘loses’, although it must be said that it this itself is not always a straightforward position: the Claimant may win on some issues, the Defendant on others and sometimes there is no clear winner. This is important because it may impact another important decision by the judge, namely whether one party should be ordered to pay some or all of the other party’s legal costs.
A good solicitor will have anticipated the possible outcomes at trial, both as to the judgment and the costs, and advised you accordingly so there are no nasty surprises which have not been taken into account before risking a trial determination. The Judge will give a “Judgment” which is a formal and legally enforceable statement of the outcome of the claim.
A judgment, for money at least, is a hollow victory if the money is not honoured and paid. This is why a good solicitor will consider with you, before and during a claim, whether there will be any difficulties enforcing a judgment and/or costs order. There are various methods of enforcement including instructing bailiffs, bankruptcy, attachment of earnings orders, charging orders, orders for sale. The risks and costs of all should be considered before you start litigation especially if an offer is already on the table.