The UK litigation process: an overview
Litigation is still the main method in England and Wales by which parties seek to resolve civil disputes. Laura Clayburn from Associate at DAC Beachcroft walks you through the steps.
Civil litigation is governed by the Civil Procedure Rules (CPR) and involves each party trying to prove their case on a balance of probabilities, usually before a judge.
Parties to the litigation must comply with the CPR, although the rules vary depending on the type of case and the value of the claim. Pi magazine summarises the main steps…
1. The pre-action protocols
The protocol differs depending on the type of case. Even if there is not a specific protocol, parties to a dispute are encouraged to exchange sufficient information regarding their respective positions so they can identify, narrow and try to settle the issues between them. Typically, this means that parties will exchange correspondence and meet face to face.
Court proceedings should always be a last resort. One of the aims of the protocols is to encourage the parties to resolve the dispute out of Court or, at the very least, narrow the issues in dispute so that only the real issues are before the Court.
If litigation is unavoidable, a claimant will commence proceedings by issuing a claim form at the appropriate court. The claim form will then be served on the defendant, typically accompanied by the particulars of claim, which explains:
the facts and matters that are said to give rise to the claim
the legal basis of the claim
the remedy the claimant seeks, usually monetary compensation.
Normally, a defendant must respond to the claimant’s allegations in writing within 14 days of service of the particulars. Alternatively, they can send an acknowledgement of service to the Court and the claimant (again within 14 days), which will then give a defendant a total of 28 days to submit its defence. If more time is needed, it might be possible to agree an extension of time with the claimant. The claimant can then, if they wish, provide a reply to the defence.
Together, the particulars of claim, defence and reply are known as ‘pleadings’. Pleadings are usually drafted by the parties’ legal representatives, which may include both solicitors and barristers. If a matter is technically complicated, an expert may be asked to help draft the pleadings.
3. Costs and Case Management Conference (CMC)
This is, typically, the first time the parties appear before the Court. The CMC deals with administrative matters regarding the conduct of the case and checks the issues between the parties are understood. However, the Court may also hear applications from any party.
During the hearing, the Court will provide a timetable for the management of the case to trial. The timetable, also known as directions, sets out the steps the parties must take and by when.
The Court may also consider other matters including the parties’ legal costs, the extent to which the parties must provide each other with their relevant documents and the need
for expert evidence.
In advance of the CMC, the parties’ representatives will prepare documents, which may include a cost budget with full details of the costs incurred and an estimate of costs going forward, a disclosure report with details of a party’s electronic and hard copy documents and a draft timetable. The parties are encouraged to agree as much as they can before the CMC. Sometimes, if the parties are able to agree everything, the Court may decide that a hearing is not necessary and will simply provide the parties with an order that records what has been agreed.
Disclosure is the process by which the parties make available the documentary evidence in the case.
A document includes anything on which information is recorded (e.g. physical paper, computers, mobile phones, deleted electronic data and metadata).
The parties must undertake a reasonable search for documents, although what is reasonable will depend on the circumstances of the case and the value of the claim.
A party will normally be required to disclose documents that support or undermine the case of any of the parties to the litigation; this is known as ‘standard disclosure’.
Typically, a list of documents that exist or have existed is prepared and any party to the litigation has the right to see these documents or ask for copies, which is known as ‘inspection’. A party may be permitted to withhold categories of documents from inspection, for example, communications between a party and its legal advisors (solicitors and/or barristers).
5. Witness statements
A party’s documents may prove the claim or defence, but witness evidence is often also required. Witness statements may also be needed to explain the story behind the dispute or to fill any gaps in the documents.
The purpose of the witness statement is to set out, in writing, the factual evidence of a witness. A witness is not allowed to provide opinion evidence. At trial, the witness may be cross-examined by the opposing party.
A solicitor will usually help prepare any witness statements, but it is important that the statement is in the witness’ own words. A witness is required to sign a statement of truth confirming the facts and matters contained in the statement are true.
6. Expert evidence
A court may direct the parties to instruct a single joint expert. However, in claims of professional negligence, a court will more often than not allow parties to submit their own expert evidence. Expert evidence assists the Court in cases where it does not have the relevant technical knowledge.
Expert evidence, unlike witness evidence, will be opinion evidence. An expert will usually provide a written report, sent to the Court and the opposing party. If the parties want the experts to provide oral evidence at trial, then they need to ask the Court’s permission. Sometimes, the Court may ask opposing experts to meet to discuss their evidence, with a view to producing a statement for the Court that sets out the matters on which the experts agree and disagree.
7. Pre-Trial Review (PTR)
Like the CMC, the PTR is an administrative hearing. At the PTR, the Court will:
1 – check parties have complied with the timetable and with any other orders the Court has made during the litigation
2 – fix the date for trial
3 – finalise the timetable for the trial and a list of issues to be decided.
The Court will also consider whether there is a further opportunity before the trial for the parties to settle the dispute.
8. Alternative Dispute Resolution (ADR)
In all litigation, the Court will expect and encourage the parties to consider alternative methods of resolving their dispute besides a trial. The timing and nature of ADR will vary, but the most common methods are negotiation and mediation. The parties may also make Part 36 offers, which are governed by the rules set out in CPR and have potentially significant cost consequences.
Mediations and negotiations are usually conducted on a without prejudice basis, meaning statements made in a genuine attempt to settle a dispute cannot be put before the Court as evidence against the party that made them.
Parties will usually instruct barristers to present their case to the judge, explaining the law and any relevant case law, drawing the Court’s attention to relevant documents and cross-examining the opposing party’s witnesses and experts. Any witnesses and experts will also give their evidence.
At the trial’s conclusion, the judge will make a decision. Often, the decision can be delayed to give the judge time to consider all the evidence and write his decision.
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