KEY STAGES OF LITIGATION

Pre-action Protocol

Prior to commencing court proceedings, the parties are expected to have complied with the Pre-action Conduct and Protocols (“Pre-action Protocol”). There are specific protocols for certain types of claim. There is a Pre-action Protocol for Debt claims which applies to any business claiming payment of a debt from an individual. If the Pre-action Protocol for Debt claims does not apply, the general Pre-action Protocol will apply. The object of the Pre-action Protocol is to look to resolve claims without the need to issue court proceedings. There may be adverse cost consequences for a party who does not comply with the Pre-action Protocol.

Before commencing court proceedings, it will usually be necessary to send a Letter of Claim to the other party providing concise details of the claim, a summary of the relevant facts and the remedy sought. The Letter of Claim should annex copies of the key documents (i.e. in the case of an unpaid debt, an invoice and/or any written agreement/purchase order). The other party should then respond to the Letter of Claim (usually within 14 days) setting out whether they admit the claim and if they do not, the reasons why.

Statement of case

Claim Form

To issue a claim at the court, it is necessary to complete a Claim Form which contains a brief summary of your claim and the remedy sought. The Claim Form will be sent to the Court to be ‘issued’ and it must then be served on the Defendant within four months. There is a court fee payable on the issue of a claim. The fee payable depends on the value of the claim and will be between £35.00 and £10,000.00.

Particulars of Claim

The Particulars of Claim provide full details of the claim made against the Defendant. It may be necessary to instruct a barrister to prepare the Particulars of Claim, depending on the complexity of the claim. The Particulars of Claim must be served on the Defendant within 14 days the Claim Form being served on the Defendant, though they are often served at the time same.

Acknowledgement of service

The Defendant has 14 days from service of the Particulars of Claim to file an Acknowledgement of Service to the claim. The Acknowledgement of Service should state whether the Defendant admits the claim, admits part of the claim or denies the claim.

Defence (and Counterclaim)

If the Defendant disputes the claim, it will be necessary for the Defendant to file and serve a Defence to the claim setting out which allegations in the Particulars of Claim she accepts, denies or neither admits or denies. Unless time is extended by agreement or court order, the Defendant must file and serve the Defence:

  • (if no Acknowledgment of Service is filed) within 14 days of service of the Particulars of Claim.
  • (if an Acknowledgment of service is filed) within 28 days of service of the Particulars of Claim.

It is possible for the parties to agree an extension of up to 28 days for the time for filing and serving a Defence.

A Defendant may also file and serve a Counterclaim (i.e. a claim against the Claimant) when serving the Defence.

Reply (and Defence to Counterclaim)

If the Defendant disputes the claim and serves a Defence, the Claimant is entitled to file and serve a ‘reply’ to the Defence (and Defence to the Counterclaim, if applicable).

Interim remedies

Default judgment

If a Defendant fails to file an Acknowledgement of Service within 14 days of the Particulars of Claim being served, or the Defendant fails to file a Defence within the relevant time period, the Claimant is entitled to request that the court enter judgment in default against the Defendant. A judgment in default will generally be entered by the court upon receipt of the request.

A Defendant may apply to have a Judgment in default set aside providing that they can satisfy the court of certain requirements (for example, that they did file an Acknowledgement of Service and/or Defence within the relevant time period).

Summary judgment

Either party is entitled to apply to the court to dispose of a claim without a trial. This is known as an application for summary judgment. A Claimant making an application for summary judgment would need to demonstrate to the court that the Defendant has no real prospect of successfully defending the claim. Vice versa, a Defendant would need to demonstrate that the Claimant has no real prospect of succeeding on the claim or issue.

Strike out

Either party is entitled to apply to the court for an order to strike out all or part of the other party’s statement of case (i.e. the particulars of claim, defence etc.) on the basis that:

  • it does not disclose any reasonable grounds for bringing or defending the claim;
  • that there has been an abuse of the court process; or
  • there has been a failure to comply with a rule, practice direction or court order.

Security for costs

In certain limited circumstances, a Defendant to court proceedings may apply to the court for an order for security for costs. If successful, the Claimant would be required to provide security for the costs of the Defendant (e.g. pay a sum on money into court pending the outcome of the claim). Security for costs provides the Defendant with protection in the event that the Defendant successfully defends the claim and the court makes an order requiring the Claimant to pay the Defendant’s costs.

Interim injunctions

An injunction is an order requiring a party to do a specific act or preventing a party from doing a specific act. Interim injunctions should be used sparingly. If an interim injunction is ordered and it is later found that the injunction should not have been ordered, the applicant will be liable for any losses incurred by the other party as a result of their being required or prevented from doing a specific act.

Case management

After a Defence has been filed, the court will serve notice of proposed allocation. The court will propose a ‘track’ which appears suitable for the claim. A number of factors will be considered by the court to determine the allocation of a claim, including the value of the claim and the complexity of the factual and legal considerations.

Directions questionnaire and draft directions

Each party will be required to file and serve a directions questionnaire and draft directions upon receipt of the proposed allocation. The directions questionnaire asks the parties a number of questions, including:

  • the parties proposals for disclosure of documents;
  • the number of witnesses they intend to call;
  • whether expert evidence will be necessary.

The draft directions set out the parties proposed directions for the claim to proceed to trial. The parties are required to attempt to agree draft directions before filing the draft directions at the court.

Upon receipt of the directions questionnaire and the draft directions, the court will either make a directions order (in the terms agreed by the parties or otherwise) or alternatively, hold a case management conference to determine directions to trial.

Case management conference

If the court decides that a case management conference is necessary to determine directions for the future conduct of the claim, both parties should attend the conference. The court will consider the issues in dispute and whether they should be narrowed, whether the claim is suitable for mediation; and what directions are necessary before the claim can be heard at trial (such as the disclosure of documents, time for serving witness evidence and whether expert evidence is necessary).

The parties may be required to file and serve a costs budget prior to the case management conference. A costs budget sets out a party’s incurred costs and estimated costs to trial.

Evidence

Disclosure (and inspection) of documents

Both parties will generally be required to disclose:

  • documents on which he relies;
  • documents which:
  • adversely affect his own case;
  • adversely affect another party’s case;
  • support another party’s case.
  • The documents which he is required to disclose by a relevant practice direction.

Documents are disclosed by listing them and serving the list on the other party. The other party will then be entitled to inspect the disclosed documents (providing that they are not ‘privileged’ documents). Inspection is usually undertaken by providing the other party with copies of the requested documents.

Witness Statements

It will be necessary to identify the parties involved in the claim and take a written statement from them as to the evidence they intend to give to support the claim. The court may limit the number of witness statements each party is able to rely on. The witness statements must be in the witnesses own words and set out which statements are made from their own knowledge and which are matters of information or belief and state the source of those matters. The witness statement must also include a statement of truth whereby the witness confirms that the facts stated in the witness statement are true and accurate.

If a witness statement is not filed and served in accordance with the courts directions the witness will be unable to give oral evidence at the trial without the court’s permission.

Expert evidence

Expert evidence may be required where the court does not have the requisite technical knowledge to be able to determine a particular matter. A party must have the court’s permission to rely on expert evidence. The court will likely limit the extent of any expert evidence to a specific issue or question. It may be the case that the court allows for the parties to rely only expert evidence but provides that such expert evidence is to be provided by a single joint expert (i.e. an expert jointly instructed by both parties) rather than each party appointing their own expert in an attempt to limit the costs incurred.

Preparation for trial

Pre-trial review

It may be the case that the court will decide that a pre-trial review is necessary. A pre-trial review will generally be held in complicated cases where there are a number of issues in dispute. At the pre-trial review, the court will want to know whether the parties have complied with the relevant court directions and orders and may provide for further directions ahead of the trial.

Preparation of trial bundles

It will be necessary for the Claimant to prepare a trial bundle containing the relevant documents for the parties to refer to at the trial. The trial bundle should include:

  • Pre-action correspondence;
  • Statements of case;
  • Witness statements;
  • Expert evidence;
  • Key documents;
  • Court orders;
  • Key correspondence.

It is necessary for the parties to attempt to agree the contents of the trial bundle.

Skeleton arguments

Both parties will be required to submit a skeleton argument to the court ahead of the trial. The skeleton argument provides a summary of a party’s case. It is usually drafted by counsel.

Chronology

It is necessary to prepare a chronology setting out the history of the claim to date and provide the court with a copy of the same.

Settlement

Parties to litigation have an ongoing obligation to consider the possibility of reaching settlement at all times, including after proceedings have been issued. If proceedings are issued, the parties may be required by the court to provide evidence that alternative dispute resolution (ADR) has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.