Overview of a Typical Litigation Claim.
After completing the process as set out in the applicable Pre action protocol to the type of claim, and if matters cannot be resolved between the parties the claimant will issue proceedings.
Issuing of Proceedings:
The claimant will issue a claim form through the electronic filing system in the appropriate division of the High Court or County court depending on the type of claim. The claim form will set out the name and address of the claimant and defendant, the value of the claim and brief details of the type of claim and include the particulars of claim or in more substantial claims it will have the particulars of claim attached.
A fee will be payable for issuing the claim which is set by the value of the claim with an additional amount payable if the claimant is seeking a non-monetary remedy such as an injunction. There are detailed rules to follow as to service of the proceedings, which are not set out here, which must be complied with very carefully.
Acknowledgement of service:
Upon service of the claim on the defendant there is a time limit to acknowledge the proceedings of 14 days from service of proceedings. If the defendant fails to do so the claimant can apply for judgement. In the acknowledgement of service the Defendant will state whether they propose to defend the claim and whether they intend to dispute jurisdiction.
If the defendant does wish to defend the claim they have 28 days from the date of service of the claim form to file and serve a defence. If the defendant does not serve a defence then the claimant is entitled to apply to the court to have judgment in default of defence. A claimant may file a reply to the defence, but they are not obliged to do so. You will not be taken to have admitted any matter raised in the defence if you fail to deal with it in a reply; you will be taken to require that matter to be proved by the defendant. If a counterclaim is served, you should normally file a defence to the counterclaim within 14 days of service of the counterclaim. There can then be in certain circumstances a reply to a defence to counterclaim.
Statements of Truth:
Each statement of case must be verified by a statement of truth. From April 2020 the statement of truth must be a follows.
“[I believe OR The [Claimant OR AS MAY BE] believes] that the facts stated in this [NAME OF DOCUMENT TO BE VERIFIED] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
This confirms that the person making the statement believes that the facts stated in the document are true. Statements of truth must also be signed for each witness statement and certain other documents filed in proceedings.
Proceedings for contempt of court may be brought against a person if they make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth of the facts being verified. Further, a failure to verify a document can mean that the party will be unable to rely on the document as evidence of any of the matters set out in it, or that a statement of case is struck out.
Interim remedies and final judgments without a trial:
There are certain procedures available to enable a party to obtain a remedy or judgment against the defendant before a trial. In some circumstances, this might avoid the need for a trial altogether.
If the defendant fails to file a defence within the relevant time limit, you may obtain a judgment in default of defence, which means that judgment is entered on the claim without a trial.
Summary judgment is a means of obtaining judgment against the defendant at an early stage, avoiding the need to pursue the claim to trial. It may be appropriate to apply to court for summary judgment, either on the whole of the claim or on a particular issue, if it can be established that:
- The defence has no real prospect of succeeding.
- There is no other compelling reason why the claim or issue should be disposed of at a
Also summary judgment can also be sought by defendants, on the grounds that there is no real prospect of the claim succeeding.
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 one of the following applies:
- The statement of case discloses no reasonable grounds for bringing or defending the
- The statement of case is an abuse of process.
- There has been a failure to comply with a rule or court order.
Costs and Case Management:
Once a defence has been filed, the court will serve a notice of proposed allocation. The notice of proposed allocation will require the parties, by a certain date, to:
- Complete, file and serve a directions questionnaire.
- Comply with any other matters.
This is completed by both parties and exchanged and filed at court by the due date.
The questionnaire provides the court with information about the claim to assist in allocating to the correct track and providing directions as to the determination of the claim.
There are three tracks, the small claims track, fast track and multitrack.
In the directions questionnaire the parties set out their views as to the claim and proposals as to the disclosure of documents and the scope and extent of the disclosure. Any expert evidence that the parties feel necessary. The identity of the expert and the issue on which the expert is to report. The number and identity of the witnesses that you intend to call at the trial. An estimate as to the length of the trial and whether or not the parties wish to engage in alternative dispute resolution such as mediation. If they do the parties can propose that there be a 28 day stay to explore settlement.
Depending on the type of case and the level of damages it may be the case that you have to file with your questionnaire a budget for the costs of the proceedings both of incurred cost to the date of the CCMC and estimated costs right through to the trial. If you don’t then the court will order that you are only able to recover in the event of success the court fees unless you can persuade the court by way of a relief from sanctions application. It is vital that any dates given by the court are complied with exactly and you do not leave preparation of the directions questionnaire or budgets until the last minute.
Costs and case management conference (CCMC):
After the parties have filed with the court the directions questionnaire, draft order for directions and budgets and exchanged with each other, the court will then list the matter unless the draft directions have been approved by the judge, for a CCMC. In certain cases budgets will be exchanged three weeks prior to the CCMC and then budget discussions will take place to attempt to agree, as far as possible the budget of the case through to the trial.
This is a procedural hearing at which the court will give directions for the future conduct of the case until the final hearing or trial .
At the CCMC the court will consider the issues in dispute whether they can be narrowed before trial such as a trial on a preliminary issue and they will also budget the case and fix costs for each stage of the proceedings up until and including the trial.
The court will set a timetable for disclosure of documents, exchange of witness evidence and expert reports and then will fix a date for the trial. In very substantial cases the court will set a further hearing known as a pre-trial hearing prior to the trial to finalise preparations for the trial.
Disclosure of documents:
After the CCMC directions have been given the first stage is disclosure of documents.
Disclosure is the process during which both the claimant and defendant exchange a list of those documents relevant to the issues in the case which either support or possibly undermine a party’s case. This may include documents that are harmful sensitive or confidential.
Each party will identify what documents exist or may exist relevant to the issues in the case. Where those documents may be located and with whom and an estimate as to the cost of searching for them and disclosing them.
A list of documents is served on your opponent by way of a list. Once each party has exchanged their list then there will be inspection of those documents, usually by way of a disclosure of a bundle of documents, although sometimes they can be inspected in person.
There are certain documents that are referred to as privileged and that you are entitled to withhold inspection of those documents. There are documents which are protected because of legal advice privilege. Documents which have litigation privilege are documents involved in contemplation of the dispute that could include communication between yourself and your solicitor but also without prejudice correspondence and communications made in a genuine attempt to settle your claim.
The next stage is the preparation and the exchange of witness statements.
Both the claimant and defendant will prepare written statements of their evidence of witnesses who support the claim or the defence of the claim. It is expected that all witness evidence is in writing and is exchanged at the same time prior to the trial of the action. The party’s witnesses will then be cross examined at trial on their witness statements.
The time for exchange of witness statements will be given in the order for directions after the case management conference. The parties will not be able to rely on witness evidence which has not been exchanged in accordance with the order of the court accept with leave of the court which would have to be obtained by way of an application to the judge.
Depending on the type of dispute the parties may well have expert evidence. The court will either decide that both parties can have their own expert or that a joint expert is appointed for both the parties.
There may be more than one expert evidence on different disciplines. If the parties have separate experts then it is likely that the experts will exchange their reports and then meet to attempt to narrow the issues between the parties that is the areas where the experts agree and disagree.
Once witness evidence has been exchanged the parties will then begin preparation for the trial itself . The claimant’s solicitor will prepare an index to the trial bundle which will include the court documents such as the statement of cases and any court orders. It will also include the disclosure documents the parties rely on and witness evidence. Both parties must agree the trial bundle. It must not contain unnecessary documents and the documents in the bundle must be very clear and legible.
The claimant must by a time specified by the court pay a fee for the trial and if ordered by the court the parties must complete listing questionnaires.
Preparation of skeleton arguments:
The parties will prepare skeleton arguments which will be exchanged with each other, usually not less than two days prior to the trial and filed with the judge. A skeleton argument is an outline of the parties’ case and its arguments. it will also refer to the authorities the parties intend to rely on in support of the claim or defence to the claim. The skeleton argument will be drafted by counsel.
Trial and Judgment:
The trial will take place in public in a courtroom unless as per currently there are restrictions because of the Covid pandemic in which case the hearing may be heard remotely by way of Zoom, Skype or Microsoft teams.
The trial will be heard by a single judge who will listen to the evidence and may ask questions of the witnesses and Counsel. The judge will then give his decision by way of a judgement which will be either given in person at the conclusion of the final day of the trial or in more substantial cases they will hand down a written judgement usually a few days later.
It is usually the case that if successful with your claim the judge will order that you are awarded the costs of the action. As the case will have been budgeted, the judge will order a payment on account of those costs to be paid by the losing party to the claimant within 14 days, which is a percentage of the budget which can be anything up to 90% of the budgeted costs.
There may be some cases in which you don’t succeed on all issues and in which case you may not receive the whole of the costs, or the defendant may be awarded some of their costs.
The judge may also take into account factors such as the conduct of the parties, or if a part 36 offer had been made by one of the parties to settle the claim. Costs are subject to an assessment process during which the parties have a detailed bill drafted and unless the parties can agree those costs, the amount that the winning party recovers will be determined by another judge at an assessment hearing. It is very unusual for a party to be able to recover all the costs incurred in the litigation.