Overview: Litigation Process
Whilst it s true to say that ligation comes in a variety of forms and processes, it is possible to identify common themes that exist in almost all forms of claims before the courts. Normally, claims follow what is known as a “Part 7” procedure through the court system in cases where there is a dispute over facts. Sometimes, a special process is used where there is no dispute of fact, but only questions of law to be decided, and in such cases, it is possible to use what is known as a “Part 8” procedure. This article will focus only on Part 7 claims as these are, by far, the most common type.
The various stages are as follows:
1. Pre-Action Stage – Protocols and Pre-Action Conduct
Before a claim is commenced in the court system, it is essential that a prospective claimant sets out the basis of their claim fully in writing first. In certain types of case, a formal letter pursuant to a “Protocol” is required; the text of the protocol itself will set out what should be included in the letter of claim. This formal type of letter is required in the following types of cases:
– personal injury claims;
– clinical disputes;
– construction and engineering disputes;
– defamation claims;
– professional negligence claims;
– judicial review challenges;
– disease and illness claims;
– housing disrepair claims; and
– possession claims (mortgage or rent arrears).
The scope of the relevant protocol assists in determining whether it is applicable for a particular type of dispute. The full text of the various protocols can be found here.
For any other type of claim, there is no formal requirement as to the content of the letter as such, although a general requirement exists by virtue of the Practice Direction on Pre-Action Conduct.
The essence is that the Courts will always expect to be treated as the last resort to the parties’ attempts to resolve a dispute. A failure to follow pre-action steps and comply with protocols is highly likely to lead to the court penalising the defaulting party by making an adverse costs award against them at trial. Additionally, the court has the power to stay proceedings for a period to enable any pre-action protocol to be complied with.
2. Claim Form
Although not suitable for all types of claim, the usual form is the N1 claim form. Attached to the claim form, or within the body of the rear of the form, are the “particulars of claim”. These are where the substance of the background to the claim is set out. The claim form itself would contain limited information, such as the names and addressed of the parties and the value of the claim.
Details of what should be in the claim form are set out in Part 7 – hence, as noted above, the reference to “Part 7 Claims”.
The claim form is normally served by the court in simple cases. Once the court posts the claim form to the defendant, will be deemed to have been served 2 working days thereafter, even if it actually arrives at some other time. This is to ensure certainty within the court process so that parties are aware of deadlines they must meet.
The claim form and particulars of claim must be served at an address which is permitted by Part 6. Often, this would be at the defendant’s home address or, in the case of a company, at its registered offices or a principal place of business.
3. The Acknowledgement of Service
Not all defendants will be in a position, upon receiving the claim form, to immediately file a defence within the 14 days allowed following deemed service of the claim form. In such instances, so long as the defendant returns the Acknowledgement of Service to the court within the 14 days period, it will extend the deadline for filing the defence to 28 days following the deemed date of service.
Sometimes, this form is used to challenge the jurisdiction of the English court to entertain the claim at all. This is unusual for most claims. For those limited claims that do require a challenge to jurisdiction, legal advice is likely to be a necessity due to the complex law and procedure involved, together with the strict short time-scales that apply.
4. The Defence
Any defence must comply with the provision of Part 15. It must set out whether the claimant’s case, as set out in the particulars of claim, is admitted, denied, or non-admitted (i.e. neither admitting nor denying, but requiring the claimant to prove its case).
5. Case Management
Following receipt of the defence, the court will provide directions to progress the matter to a final hearing, or trial. Sometimes, in more simple cases, this directions stage is dealt with by the court on paper and a hearing is not required. In larger, more complex claims, the court is likely to hold a hearing to hear the representations of the parties as to how they believe the court should direct the matter be managed to trial.
The court is likely to make an order requiring various steps to be taken, two of which would be disclosure and exchange of witness evidence.
6. Disclosure and Inspection
This is where the parties are required to list all of the “documents” in the possession, custody or control, that they wish to rely on. Depending on the specific order made by the court, they would complete a disclosure statement, which typically, would be done by Form N265: Standard Disclosure.
From the lists exchanged, the parties would then request copies of those documents that they wished to see. This is called “inspection”. It is important to note that these two stages of disclosure and inspection are separate and all too often, litigants feel that they comply with disclosure simply by copying documents to the other parties – this is not correct and can and does result in claims being dismissed by the court.
7. Witness Statements
Once the disclosure and inspection stages are complete the parties will need to exchange their witness statements. This would be their main evidence (or evidence in chief, as it is known), upon which the witness would be cross examined at trial. It is important to appreciate that this step applies not only to witnesses, but to the claimant and defendant too if they wish to given evidence, which is almost always the case.
Witness statements must comply with the provision of Part 32. It is of fundamental importance to appreciate that witness statements not served in time, in the proper format, as required by the court would lead to that evidence being excluded unless the court otherwise orders. This is not a sanction to be taken lightly – if the evidence cannot be used, the party in default may find themselves at a severe disadvantage and unable to make out their claim or defence.
8. The Trial
Following completion of various ancillary directions before trial, this is where the litigation process ends, for most cases, at least. This stage is often reached at about 7 – 12 months after the start of proceedings for more routine cases.
Note: this is a simplified overview of the court process and some types of litigation have far more complex processes involving the use of, for example, expert witnesses and interim applications (e.g. for injunctions and/or compliance with directions orders).