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Overview of a typical litigation claim.December 21, 2011
The Article which deals with the Pre-Action Protocol deals in more detail with the various stages which are to be completed prior to the issue of proceedings. The parties are expected to explore settlement after the Letter of Claim has been written, they are expected to exchange documentation, information and even meet.
Issuing of Proceedings:
The Claimant will issue a Claim Form, this will set out all the Particulars of Claim or will have the Particulars of Claim attached to the Claim Form. The Claim Form or the Particulars of Claim contains details as to the Claimant’s claim against the Defendant. A fee will be payable for issuing a Claim Form which is usually represented by the value of the claim. Thereafter there are rules to follow as to service of the proceedings and there is a time limit for the Defendant to acknowledge the Claim Form.
In the acknowledgement the Defendant will state whether he or she proposes to defend the claim. If the Defendant does wish to defend the claim they have 28 days from the date of service of the Claim Form to do so. 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.
The parties will both complete an Allocation Questionnaire which will set out the details of the claim, number of witnesses, any expert evidence that is to be obtained or has been obtained and will also contain the parties proposal as to Procedural Directions. This form has to be filed with the Judge. The Judge will then either issue an Order with the Procedural Directions or will list the case for a Case Management Hearing. The usual Orders as to directions are as follows:
1) List of Documents;
2) Disclosure of documentation the parties intend to rely on;
3) The appointment of either a single or joint expert;
4) Mutual exchange of witness evidence which will set out the parties cases;
5) Pre Trial Hearing and;
6) The matter will be listed for Trial.
Disclosure of Documents:
The parties will compile a list of all documents they intend to rely on. The parties are under a duty to disclose documents whether helpful to their case or not. Certain documents are privileged and are not to be disclosed such as correspondence with your solicitor.
If the parties are to rely on oral evidence then the statement of that party must be contained within written witness evidence. The witness evidence is to contain all the evidence and facts on which the witness intends to testify at Trial. This is the statement on which the witness is to be cross examined at Trial. The witness statement must also contain a Statement of Truth.
Exchange of witness evidence it is often the point of proceedings at which matters settle, as each party has seen the strength and weaknesses of the others case.
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 evidence or that a joint expert is appointed for both the parties. There maybe 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 i.e. the areas where the experts agree and disagree.
The matter will then be set down for Trial. Each party is usually represented by a barrister or counsel. The barrister will present the case to the Court. The barrister will make opening submissions, then the Claimant’s witnesses are usually called and then cross examined by the Defendant’s counsel and thereafter the Defendant’s witnesses are called and cross examined by the Claimant’s counsel. Both barristers will then “sum up” the case and deal with the legal issues involved. The Judge will then make his or her decision. That decision will either be made on the day or the Judge will in more difficult decisions reserve judgment to at a later date.
The general rule is that costs are awarded to the successful party. That means that the unsuccessful party will bear the costs of the proceedings. There maybe issues within the litigation where the judge decides that one party and a different party should pay the costs. It is generally the position that a successful party will recover approximately 60-70% of their costs from the other side.