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What is Litigation? All You Need to Know About the Law & Process

11 August 2020

What is litigation?

Litigation is the process of taking a dispute to a court of law.  If parties cannot agree between themselves about the fair and proper outcome of a dispute they will present their respective cases to a court for its judgment. It is a broad term that describes a long and sometimes complex process. In this article, we will break down the stages in the litigation process.

What kind of cases can be resolved using litigation?

There are a wide range of cases which can be resolved using litigation. These can include:

  • Commercial disputes e.g. claims for breach of contract such as damaged goods or recovery of debts;
  • Matrimonial matters e.g. determining the extent of a spousal claim in a divorce action;
  • Claims against the state e.g. A judicial review of a planning decision;
  • Personal injury claims e.g. monetary claims arising out of an accident where a person suffered harm;
  • Employment disputes e.g. a claim for wrongful dismissal.

Which is the right court for me?

You may be aware that there are a number of different courts and tribunals in the British legal system. The decision as to which court or tribunal to approach will depend on the particular facts of your dispute and whether there is a specialist court or tribunal set up for your specific type of case. Your solicitor will advise you on which of these would be best to approach and the considerations informing this decision can include:

  • The value of your claim. If your claim is valued at less than £100,000 then the case will be commenced in the county court. If it is valued at more than £100,000 it can be brought in the High Court;
  • Nature of the claim. If your case will involve the assessment of complex and technical evidence then you may approach a specialist court like the Technology and Construction Court which hears cases involving disputes over buildings, engineering or surveying.

Who can approach a British Court?

The right to approach a court to resolve a dispute is a fundamental human right. However, that does not mean that anyone can bring any claim in a British court. This question is determined by considering whether a particular court has jurisdiction over a person or a claim.

A common clause in many international contracts is along the lines of, “in the event of a dispute the law of England and Wales will apply”. This does not mean that the British court has jurisdiction.  All it means is that in resolving a dispute the law to determine obligations will be that of England and Wales.

As a general rule, the defendant must reside within a court’s physical jurisdiction or the cause of action must have arisen within a court’s jurisdiction. This is a complex area of law and specialist legal advice is often necessary to determine whether a particular court has jurisdiction. The consequences of bringing a claim in the wrong court is that a claim could be dismissed early on this technical basis without the court having to consider the underlying merits of the claim.

What is the litigation process?

The litigation process can be divided into three broad stages:

  • The issue of proceedings and filing of a defence;
  • Pre-trial procedures;
  • Trial

The Civil Procedure Rules, 1998

The litigation process is governed by The Civil Procedure Rules 1998. This is a comprehensive set of rules which inform all aspects of the civil litigation process. The Rules prescribe the time limits within which certain steps in the litigation process must be undertaken, the correct forms to use and the obligations on the parties to litigation to narrow the issues in dispute.  Please note that other areas of dispute, such as matrimonial disputes, may have their own set of procedural rules to follow.

The overriding objective of the rules is to resolve disputes justly and by the most efficient means possible. Parties can be penalised for failing to comply with these rules by costs orders against them or in the most extreme cases having their claims or defences “struck out”. This means that they can no longer continue in the process and “lose” by default.

These procedural rules can be complex and while there is no obligation on parties to have legal representation, the High Court has held that litigants in person (i.e. individuals representing themselves) will not be given any special treatment in respect of their obligations to comply with the rules, court orders and timeframes.

The first stage: issue of proceedings and filing of defence

Legal proceedings commence by the formal service of a claim on a defendant. The claimant’s case will be set out in two documents

  • Claim form – which sets out the names of the parties and the bare details of the claim;
  • Statement of case – this document sets out the full details of the claim including the facts which support the claim being made.

The length and complexity of a statement of case will depend on the facts of each case. This document does not contain evidence because its purpose is to set out in clear terms the facts which the claimant allege, if proved, will justify the relief sought in the case and the full legal basis for the claim. The defendant must be fully informed of the case they have to answer.

A defendant served with a claim form and a statement of case must, within the time periods prescribed by the Civil Procedure Rules, either object to some technical aspect of the claimant’s case or deliver its defence. The technical term which you may come across is “pleadings”. This refers to the claim document and the defence (also known as a “plea”) and any reply to the defence.

Objections to Claim

It may happen that the statement of case has some serious defects which means that a defendant cannot deliver a defence or has been advised that it is not necessary to do so. The reasons for this could include:

  • The facts, as pleaded in the statement of case, do not support a cause of action (i.e. a legal basis for bringing a claim);
  • The court in which the claim has been brought does not have jurisdiction to hear the claim;
  • The facts have not been properly pleaded and the defendant requires more information before they can file a defence.

These objections are raised by a formal notice.  The claimant can either amend its claim or a court will hear argument on the objections and make a decision on whether the claim can proceed.

The defence

This pleading deals with the facts alleged and either admits or denies them. A defendant could allege additional facts which it says is relevant to the determination of the claim. A claimant may, in addition, deliver a “reply to the defence” to deal with these additional facts.

Pre-trial procedures

Once the pleadings are filed, the parties will have a fair idea of which issues of fact or conclusions of law are in dispute. The purpose of the pre-trial procedures is to:

  • Narrow the issues in dispute between the parties;
  • Disclose to the other party all the documents in their possession or control which are relevant to the case (which either support or are adverse to their case);
  • Prepare for trial e.g. estimate the number of days required;
  • Explore the possibility of settlement.

The procedures for the above are set out in detail in the Civil Procedure Rules. It is vital that both parties engage with each other in a civil and co-operative manner. If a party is shown to be obstructive or evading its obligations under these rules, then they could face a penalty for costs even if they are ultimately successful in the action.

The trial

Trials are held in open court and heard by one judicial officer. As part of the pre-trial procedure the parties will have estimated the number of court days required to hear all the evidence and argument. The court administrators will serve a notice on the parties advising them of the date and time of the trial. It will be the responsibility of the legal representatives or the litigant in person to ensure that they are properly prepared to start on the allocated day and that all of their witnesses are at court to give evidence if necessary.

The judgment

Once the court has heard the evidence and argument as to the correct legal conclusion based on the evidence, it will make its decision. This is known as a judgment. It is usually in writing and will set out the facts the court found proved and the legal conclusion based on those facts. The judgment will also contain a direction as to who should pay the costs of the litigation.

An appeal

If the parties are not satisfied with the outcome one (or sometimes both) can apply to appeal the judgment to a higher court. An appeal court will, as a general rule, not interfere with findings of fact made by the first judge (because that judge had the opportunity to observe the witnesses and make decisions about their credibility) but it could disagree with the judge’s legal conclusions and either overturn or vary the original finding.

Costs

Litigation can be an extremely expensive undertaking. While it is true that in most cases the successful party can claim its legal costs from the other it is unlikely that a party would be able to recover all of its legal costs. The costs can be divided into two broad categories:

  • Court costs which are the administrative fees payable to the Ministry of Justice in order to bring a claim. These vary in accordance with the value of the claim.
  • Costs of legal representation. These are the fees charged by your solicitor to act for you in a matter. These too can vary in accordance with the type of claim and the level of seniority of your legal representative. It is very important to discuss how you will fund litigation with your solicitor.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Dominic Holden or write to us using the contact form below.

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Dominic Holden
Partner, Head of Litigation
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