Legal Claims Process: A Quick Guide
Litigation is our specialty. Although every claim is different and may follow a different path, we can guide you along the process.
The purpose of this guide is to provide an outline of a standard litigation process within England and Wales, and is for use by clients of Boyal & Co Solicitors Ltd only. This guide is not a substitute for any legal advice that we may set out in correspondence with you directly, and does not contain an exhaustive explanation of each process. If you have any queries or would like more detail on any aspect of this guide, please let us know.
Pre-Action Correspondence
The Court procedure is governed by the civil procedure rules (CPR), which set out the rules and procedures that all litigants should follow when conducting a legal claim. This includes a number of protocols which set out the best practices for parties to follow in exchanging correspondence, and aim to resolve the dispute without the need for Court involvement.
Which protocol to follow will depend on the nature of the claim. However, across all protocols, and as a bare minimum, a claimant is expected to have sent a letter to the defendant before commencing any legal action, and to have allowed the other side enough time to consider their position and respond.
If a party fails to comply with the relevant protocol, the Court may impose a sanction for that failure, which is often reflected in any order for legal costs made by the Court at the end of the claim.
For more info on what this involves, read how we can help or contact us.
Alternative Dispute Resolution (ADR)
ADR is the process of using other methods to resolve your claim without going to Court. This can include: Mediation, Arbitration, Adjudication. Although it could be as simple as offering to enter into direct negotiations with your opponent.
ADR can take place at any stage of the claim, but commonly takes place at key stages such as:
Before legal proceedings commence - Where an early resolution will achieve the biggest savings in legal costs (as opposed to proceeding all the way to a trial);
After statements of case have been filed - Where the parties have set out their position, so each side should know what the legal issues are and what they need to prove in the claim; or
After evidence has been filed - When the parties know what each other will be saying at Court, and they are able to better assess their prospects of success in the case.
The Court are increasingly eager to ensure that parties to litigation participate in ADR. Any party who is seen to be unreasonably refusing an offer to participate in ADR may face a costs sanction by the Court (e.g. being ordered to pay the other side’s costs, or a successful party having the amount of costs awarded to them reduced).
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For more information on ADR see how we can help or contact us.
Statements of Case
The first step in any claim is for the parties to file their statements of case. These are the documents which set out the relevant facts and each party’s position. They are typically:
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Claim Form – the Claimant will file this to begin the claim, and will need to serve a copy on the Defendant. Once the Claim Form is served, this will ‘begin the clock’ for the Defendant to file their response.
Acknowledgement/Admission/Defence – The Defendant will need to file a response and the form will depend on whether they want to defend the Claim.
Reply to Defence (Optional) – The Claimant has the opportunity to respond to the points made in the Defendant’s Defence.
If the Defendant fails to file a response, the Claimant can ask the Court to give them judgment in default of the Defendant’s response.
Track Allocation
If the claim is defended, the Court will allocate the claim to a track. Which track the claim is allocated to will largely determine what steps will be taken driving the claim to trial.
The tracks are:
Small Claims Track: These are usually cases with a claim value of less than £10,000. A key feature of this track is that it involves a simpler/quicker procedure, and limits the amount of costs that a successful party can recover.
Fast Track: This is the usual track for claims with a value of between £10,000 and £25,000, and where the trial is expected to last for no more than a day.
Multi Track: This is the usual track for cases with a value of over £25,000. The procedure of these can be more complex and are subject to a greater amount of management by the court.
Case Management
Some claims may be assigned to have a case management conference. This is a court hearing where the court will lay down a timetable for the next stages of the claim, and scrutinise the parties’ cost budgets.
Disclosure
One of the Court’s overriding objectives in a legal claim is to ensure the parties are on equal footing, and that any parties or witnesses can give their best evidence. The disclosure process is therefore a key stage of most claims.
At this stage, each party is required to give to the others a list of all documents that they hold or have access to, which are relevant to the claim, and which help or harm their case. The parties will then exchange selected documents, which will assist them in preparing evidence in the next stage of the claim.
If a party fails to disclose or provide a document that they are supposed to, they may be sanctioned by the court
Even after this stage has concluded, the duty of disclosure is an ongoing obligation. Therefore, if any further documents come to light, the parties should still disclose the existence of those documents to the other parties.
Evidence
A party’s evidence is primarily given in the form of a written witness statement. Within the statements you will need to mention, and where appropriate exhibit, evidence of all the facts that you need to in order to prove your case.
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The statements may come from you, any witnesses, and/or any experts.
Every witness statement will include a statement at its end in which the witness will confirm that the facts they state are true to their best belief. If a statement is given that the witness knows is false, that witness could be in contempt of the court.
Trial
The trial is a hearing at which the evidence will be presented to a judge. Any witnesses who gave a witness statement will normally be expected to attend the trial, to have their evidence examined.
We would send a barrister/counsel to attend the hearing with you and they would make any legal arguments on your behalf. They will often file a written version of the legal arguments in advance, in the form of a ‘skeleton argument’.
At the end of the trial, the Court will hand down its decision and make any order in respect of legal costs in the claim.
Appeal
If you consider that the Court have made a mistake in their decision, you may be able to appeal their judgment.
The Court have strict rules on what can be appealed and the time limits on when you must appeal. So if you believe you have grounds to appeal, seek legal advice urgently.
Enforcement
If the other side (the debtor) does not comply with an order/judgment from the Court, the Court does not automatically enforce the award. This means that you may need to take further steps to recover any money that you are owed.
Some of the steps could include:
Instructing High Court Enforcement Officers – to take control of the qualifying possessions of the debtor, for sale.
Charging Order – securing the debt against any property owned by the debtor.
Serving a statutory demand – threatening insolvency, if the debt continues to go unpaid.
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Prior to issuing a claim, consideration should therefore be given as to whether the debtor is likely to have enough assets or funds to meet your claim. If they do not have enough funds, it may be difficult to enforce any order in your favour, and you may still be left out of pocket at the end of the claim.
See How We Can Help
Our solicitors are experts in litigation and experienced in managing individual and business legal claims. This means whatever concerns or problems you face, we can help.
Book a free consultation by contacting us below, or call us on 01242 894 796
We offer a free no-obligation consultation to discuss new enquiries with you. That means you can discuss any problems you have, and consider your options, without the worry of incurring any legal costs. We will gladly listen to what you want to achieve, address any of your concerns and answer any questions that you may have.
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We will give you clear advice about any legal costs at the very start, so that you are in a well informed place, to decide what action to take.
Depending on your particular circumstances, and if we think that a legal claim has good prospects, we may be able to help on on a no-win no-fee basis. That means that we would not take anything for our fees up-front, but would usually take our fees at the end of a successful claim, and out of sums recovered from your opponent.