What is Litigation

Litigation involves an individual, organisation or business taking legal action, usually in court, to resolve a dispute that has arisen. The Civil Procedure Rules (CPR) govern how all claims are managed by the courts and set out how parties should behave.

What types of cases can be resolved using litigation?

A wide range of issues that can be resolved via litigation, including but not limited to:

• Employment matters
• Personal injury claims
• Judicial Review
• Commercial disputes
• Divorce and child related matters

Which courts are involved?

The court or tribunal that will deal with the matter depends on the facts of the case and whether there is a specialist arena, such as an employment tribunal. Other factors that can affect which court or tribunal is used include the value of the claim; if it is less than £100,000, the case will probably start in a county court, anything over that will probably begin in the High Court.

Who can bring a civil litigation claim?

This is a question of jurisdiction. Principally, the defendant (the offending party) must live close to the court that is chosen to issue the claim, or the cause of the action must arise within a court’s jurisdiction. Of course, there may also be contractual stipulations surrounding where a case may be issued. This can be a tricky area of law to understand and the consequences of getting it wrong could lead to a claim being dismissed before it gets off the ground.

The overriding objective

Underpinning litigation is something termed ‘the overriding objective’. This principal enables the court to deal with cases fairly and at a cost proportionate to the facts in dispute. Key considerations are:

• Ensuring parties comply with court orders and procedural rules
• Making sure a case is dealt with in such a way as to be commensurate to the value of the case, its importance, and the intricacies of the issues involved
• Saving costs
• Active and fair case management

These must be taken into account at each stage of the process. So, whether a court order demands you take certain steps, or the CPR directs it, you must do so in the manner set out. And if a deadline or time limit has been set, within those constraints. The court has the power to impose penalties on those who fail to comply, whether by accident or design. Penalties include costs being awarded against the offending party or the striking out of all or part of your claim.

Before starting a claim

As part of the case management process structured by the CPR, there are certain things that the parties are encouraged to do before issuing a claim. These are called pre-action protocols. There are thirteen of them in all, the most commonly used involve:

• The claimant sending a letter before action, setting out how the claim has arisen, an indication of the loss suffered, and remedy sought. The letter should also set a deadline for response.
• Letter of response from the offending party. This should be sent to the claimant within 14-21 days and confirm whether or not the claim is admitted. It is not unusual for the other party to ignore the letter and remain silent. Unfortunately, such silence generally precipitates the issuing of proceedings.
• Letter of settlement can be sent by either party setting out any issues that remain in dispute and proposals for settling the matter. It is important to say that it is not mandatory under the CPR for either party to make a proposal for settlement.

If no specific pre-action protocol applies, then the Practice Direction Pre-Action Protocol should be used. Failing to adhere to a protocol may cause the court to criticise the party’s conduct and issue a costs penalty.

Alternative Dispute Resolution (ADR)

At every stage of the process, particularly early on, the parties are encouraged to resolve the issues in dispute by using ADR. The main types of ADR include: conciliation, mediation, and arbitration. The primary advantages to solving the matter this way is that costs are dramatically reduced, there is greater flexibility and it is certainly faster than going through a lengthy court case.

A decision is usually made on the documentary evidence the parties send in and there is not always a need for the parties to attend meetings. It is an important consideration when deciding to engage in an ADR process that some ADR schemes can be legally binding. So, if you accept a decision during ADR, but later change your mind, you cannot take your case to court.