Three basic stages of civil litigation

Not without reason do civil litigation proceedings have a reputation for being both lengthy and potentially costly. 

Therefore, it’s important to have a clear understanding of what proceedings will entail before they are entered into. There are three basic stages of the civil litigation itself, as well as important work to be done both prior to and after proceedings have been concluded.

Before proceedings commence

A careful case analysis will gather as much evidence as possible in order to enable a realistic assessment of the client’s chances of success. All of the potential defendants will be identified and located. A realistic cost assessment will need to be made and communicated to the client.

Before civil litigation proceedings are commenced, a solicitor will always investigate alternative methods of resolution. A client should receive a full and frank assessment of the validity and strength of their claim.

If a decision is made to proceed a client should be made fully aware of what’s involved. The client should have a good idea of how long the process will take, as well as the likely costs involved. The client should be made aware that the court will impose a strict timetable on the proceedings.

Stage1: Commencing the claim

Proceedings begin when a claim form is lodged at the appropriate court. The full details of the claim, called the particulars, are served on the defendant. The defendant can then decide whether or not to contest the claim. If they do, they will file a defence to the claim with the court. This will then trigger the case being allocated to a particular track.

Track allocation is based on the size of the claim. Any claim up to £10,000 will usually be allocated to the small claims track. Typically, the court does not expect parties to be legally represented at small claims hearings.

If a claim is between £10,000 and £25,000, it will usually be allocated to the fast track. Parties in fast track claims will usually have legal representation. Costs will be controlled, as well as the volume and type of evidence that each party can present. Where necessary, the expectation will be that a single joint expert should be used by the parties when expert evidence is necessary. The trial will usually be conducted within a single day.

Any claims exceeding £25,000 are generally more complex and will probably be allocated to the multi-track.

Stage2: Interim Matters

Once a track has been allocated, the court will then carefully manage the case. They will issue directions to the parties regarding any steps that need to be taken to prepare for trial, and strict timetables regarding these steps will be imposed.

On the small claims track and the fast track, these directions will normally be given without the need for a court hearing. As multi-track cases are generally more complex, it’s usual for the parties to appear before a Judge. This is called a case management conference and it’s an opportunity to define any issue in dispute, and then determine what steps need to be taken in preparation for the trial.

The two most common case management directions are for:List

• Disclosure

This requires the parties to provide to each other the documents in their possession that they intend to rely on, support an opponent’s case, or which are adverse to their own case.

• Exchange of evidence

This requires any evidence that the parties intend to rely on for their case such as expert reports and statements and non-expert witness statements.

A trial date, or an indicative period of time in the future when the trial will occur, will be established and the parties will work towards it. As well as the case management directions, parties can apply to the court for any specific orders that may be required. For instance, this might be applied if a party has failed to adhere to the timetable and is then required to do so or risk having the case dismissed by the court.

Stage3: Trial

The format and formality of the trial itself will depend on which track the claim is being conducted on. For a small claims track, the process is largely informal and will be conducted at the discretion of the Judge. Formal rules of evidence will usually only apply on the fast-track and the multi-track.

At the end of the fast track trial, the Judge will usually have resolved any issues, such as liability, quantum and costs. The Judge will decide if any party should be responsible for the other’s costs and if they are, by how much. As a general rule, the loser will be required to pay the winner’s costs. This is a key reason why civil litigation needs to be carefully considered before proceedings begin.

In multi-track trials, given their complexity, the Judge can often reserve judgment, meaning that it may not be given on the day but communicated to the parties later, possibly at a further hearing which will also be used to deal with costs.

If the parties fail to agree on the amount of costs then they will be determined post-trial by a different Judge. This Judge is known as the costs Judge, and the process by which they calculate costs is called detailed assessment.

A date for any damages awarded or costs to be paid will be set by the court. If that doesn’t happen, the party will then have to apply to the court for the judgment to be enforced. A party may decide to appeal the Judge’s decision.

For more advice about the civil litigation process, speak to the expert team at Jeremy Gordon.

Our lawyers are available 24/7 to assist you and provide legal advice. Contact London +44 7700 158304 or Manchester +44 7700 164107. Alternatively you can email info@jeremygordon.co.uk