Guide to the Litigation Process

The litigation process is governed by the Civil Procedure Rules (CPR) which were implemented to reduce parties costs and improve case efficiency within the legal system. Before embarking upon litigation, parties are encouraged to explore other ways to resolve the issues between them via dispute resolution. The CPR also encourages parties to narrow the issues before issuing proceedings.

Additionally, there is a mandatory protocol requiring claimants to set out the basis of their claim in a letter to the other side. Which must contain sufficient information to enable the other side to look into the claim and decide whether they are liable.

Issuing proceedings

The claimant must complete a claim form commonly referred to as the Particulars of Claim and send it to the court office with the relevant fee for proceedings to begin. It should contain:

• A concise statement of the facts they wish to rely upon
• Details as to whether the claimant wishes to claim interest
• The remedy being sought by the claimant

The court will issue the claim, which must be served on the defendant by one of the ways set out in the CPR within 14 days.

Acknowledgement of claim form and filing a defence

Within 14 days of receiving the particulars of claim, the defendant must file an acknowledgment of service with the court. The defendant must also state whether they intend to defend the case. They then have an additional 14 days within which to file their substantive defence. At this point, the defendant may also file a counterclaim against the claimant.

Replies to a defence or counterclaim

A defence to a counterclaim must be filed and served within 14 days of service, otherwise the defendant may be able to get judgment in default against the claimant.

If there are any points raised in the defence which should be dealt with, the claimant may file a reply. This is filed with the Directions Questionnaire and is a formal document giving the court information to enable it to deal with the claim and includes questions about documents to be disclosed, witnesses that need to be called, expert evidence that will be relied upon, and any provisions for alternative dispute resolution (ADR). It enables the court to decide which track the case should be allocated to.

Small Claims Track

A claim valued at £10,000 or less will typically be allocated to this track. It mainly deals with more straightforward cases, which rarely need a lot of preparation pre-hearing.

Fast Track

Claims valued between £10,000 and £25,000 are allocated to this track. These cases tend to be a little more complex, with the court imposing a strict timetable of directions.

Multi Track

Claims valued over £25,000 will typically be allocated here, with cases being subject to costs management.

After the case has been allocated, the court will issue directions as to how the claim will be managed and set certain deadlines, such as dates for filing witness statements or expert evidence. A missed deadline can lead to a case being struck out or a costs order being made. The court may also list the case for a Case Management Conference where the parties meet with the judge at a hearing to discuss directions for the case going forward.

Pre-Trial Review

After the parties have complied with the directions from the case management conference, they must file a pre-trial checklist. The judge involved in the case may then list it for a pre-trial review hearing. This ensures all directions have been complied with. It will then set a timetable for the final hearing.

Preparation for Trial

Prior to the final hearing, pleadings, court orders, disclosure, witness and expert statements and reports should be collated and put into an indexed and numbered bundle, which is sent to the court and the other party. The parties legal representative will usually file and serve their skeleton arguments giving details of issues that will be raised.

The Trial

This is the summation of everything that has been done to reach this day. Legal representatives will give their opening speeches and present their respective cases. Witnesses are called and cross-examined, with the case rounded up by a summary of the arguments and referral to any relevant law.

After hearing both parties arguments, the judge will either hand down judgment or reserve it to a later date. 

The judge has a wide discretion regarding costs, but the overriding principle is that the winning party should be able to recoup most their costs from the losing side. Although, to a certain extent, this depends on the track the case has been allocated on to at the outset of proceedings. Generally, a winning party will only recover approximately two-thirds of their total cost spend.

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