An Overview Of The UK Civil Litigation Process

What is civil litigation?

Litigation is the process of taking a dispute to court and occurs when parties to a dispute cannot agree between themselves a fair and proper solution (known as settlement). It can take a substantial amount of time to prepare a court case and there are a number of steps which must be followed before proceedings in court are commenced. The proceedings can be long, expensive and hard.

The Civil Procedure Rules govern the process of civil litigation and these rules were introduced in 1998. The overriding objective of the Civil Procedure Rules is to deal with cases justly and at proportionate cost. The rules relate to a wide range of different matters but the overarching rules concern details of case management, service of documents (including service on the court and other parties), allocation of costs, initiation of proceedings and rules pertaining to expert evidence.

This article explains the process of civil litigation and what happens at each stage.

Which cases are suitable for litigation?

There are a wide range of situations where litigation can be used, including:

• Commercial disputes (i.e., breach of contract claims, recovery of debts, etc);
• Claims against the State (i.e., judicial review claims);
• Personal injury claims (i.e., where someone has suffered harm and monetary claims have arisen as a result of an accident);
• Employment disputes (e.g., a claim for wrongful dismissal); or
• Contentious Probate (i.e., a dispute arising from a Will).

Please note that the above is not intended to be an exhaustive list.

Which court?

A number of different courts and tribunals exist in the British legal system. The decision as to which court or tribunal would be most appropriate for your case depends on the particular facts of dispute and whether a specialist court or tribunal has been set up for your specific type of case. We can advise you as to the most appropriate court, but the following factors will also be taken into account:

• the value of your claim – if your claim is valued at less than £100,000 then the case will commence in the County Court. If the claim is valued at more than £100,000 it can be brought in the High Court (but it could still be brought in the County Court if preferable); and
• the nature of your claim – if your claim will involve the assessment of complex and technical evidence then a specialist court such as the Technology and Construction Court may be most suitable (i.e., the Technology and Construction Court decides cases involving disputes over buildings, engineering or surveying).

Who can bring a claim?

The right to bring a claim to the court to resolve a dispute is a fundamental human right. Not everyone can commence a claim in a British court and a question arises as to whether the court has jurisdiction over a person or claim. The general rule is that the defendant must reside within the court’s physical jurisdiction, or the cause of action must have arisen within a court’s jurisdiction.

We can advise you as to jurisdiction as this is a complicated area of law. There are also potentially drastic consequences of bringing a claim in the wrong court, as the claim could be dismissed early on this technical basis without the court being able to consider the underlying merits of the claim.

What are the stages of litigation?

The process of litigation can be divided into three broad stages:

1. issuing proceedings and the filing of a defence;
2. pre-trial procedures; and
3. the trial.

What are the Civil Procedure Rules?

The Civil Procedure Rules 1998 (“CPR”) govern the litigation process and is a comprehensive set of rules which inform all aspects of the civil litigation process. Time limits are prescribed within the rules, namely as to which certain steps in the litigation process must be undertaken, the correct forms to use and the obligations on the parties to narrow the issues in dispute.

Some areas of dispute often have their own set of procedural rules to follow.

Resolving disputes justly and by the most efficient means possible is the overriding objective and parties can be penalised for failing to comply with these rules, most likely by costs orders being made against them. One drastic penalty which could be imposed is that a claim or defence is “struck out”. The defaulting party will “lose” by default and they cannot continue in the litigation process.

Legal representation is not compulsory under the CPR. The High Court has held that litigants in person (i.e., individuals who represent themselves without legal representation) will not be given any special treatment in respect of their obligations to comply with the rules, court orders, and timeframes.

Issuing Proceedings and Filing of the Defence

Legal proceedings are commenced once the court has issued a claim form at the request of the claimant. The process is as follows, by way of example:

• the claimant delivers a claim form to the court (either physically or electronically);
• the claimant pays the issue fee (which can be up to £10,000); and
• the court seals and ‘issues’ the claim form.

The claimant’s claim is set out in two documents, namely the claim form (which sets out the names of the parties and the bare details of the claim) and the statement of case (which sets out the full details of the claim including the facts which support the claim being made).

The length and complexity of the statement of case will depend on the facts of each case. Evidence is not contained within the document as its purpose is to set out in clear terms the facts which the claimant alleges, if proved, will justify the relief that has been sought in the case and also the full legal basis for the claim. Importantly, the defendant must be kept apprised of the case they are required to answer.

Once the defendant has been served with a claim form and statement of case, they must either object to the claimant’s case on a technical point or deliver its defence. Time limits as specified in the CPR must be complied with at all times.

The defendant may not be able to deliver a defence or be advised not to do so, especially if the statement of case has serious defects. There are numerous reasons for this, but a few include:

1. the facts, as pleaded in the statement of case, support no cause of action (i.e., a legal basis for bringing a claim);
2. the court in which the claim has been brought does not have jurisdiction to hear the claim; and/or
3. the facts have not been properly pleaded and the defendant requires more information before they can file a defence.

What is a defence?

The defence deals with the facts alleged and either admits or denies them. Additional facts could be alleged by the defendant which it says is relevant to the determination of the claim. To deal with such additional facts a claimant may deliver a ‘reply to the defence’, but this is not compulsory.

What happens pre-trial?

Once the pleadings have been filed, the parties will have a clearer understanding of what the live issues are between them. The pre-trial procedure has a number of purposes, including 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 (i.e., which either support or are averse to their case);
• prepare for the trial (i.e., estimate the number of days required); and
• explore the possibility of settlement out of court.

The CPR sets out in detail procedures for each of the above procedures. Civil and co-operative engagement between the parties is key. A defaulting party may suffer a penalty for costs even if they are ultimately successful in their action if they are shown to be obstructive or evading its obligations under the CPR.

What happens at the trial?

Trials are held in open court (except for family cases which are heard ‘in-camera’ (privately)). Usually, only one judicial officer who is usually a district or circuit judge will hear the case.

As part of the pre-trial procedure, the parties will have estimated the number of court days required to hear all of the evidence and arguments. A notice will be served upon the parties advising them of the date and time of the trial by the court administrators. The legal representatives or litigants in person on both sides have a responsibility to be properly prepared to start on the allocated day and that all of their witnesses are at court to give evidence if necessary.

When is judgment given?

The court will make its decision once it has heard the evidence and argument as to the correct legal conclusion based on the evidence. This decision is known as a ‘judgment’. The judgment is usually in writing and will set out the facts the court found proved and the legal conclusion it has reached based on the facts. A direction as to who should pay the costs of the litigation will usually be included in the judgment, but sometimes the issue of costs becomes a completely separate matter resulting in further costly litigation.

Who can appeal?

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

How are costs dealt with?

Litigation can be extremely expensive. In most cases, the successful party can claim its legal costs from the other party, it is unlikely that it would be able to recover all of its legal costs. Costs can be divided into two broad categories:

1. Court Costs – these are administrative fees payable to the Ministry of Justice in order to bring a claim. These vary in accordance with the value of the claim.
2. Costs of Legal Representation – these are the fees that are charged by the solicitor and/or barrister to act for you in a matter. Such fees depend on a range of factors including the type of claim and level of seniority of the legal representative.

How we can help

If you require assistance to resolve a dispute or the matter is heading towards litigation, we would be more than happy to advise and guide you, working with you to ensure that your case has the best possible chance of settlement out of court. As always, we will ensure that your matter is dealt with efficiently, diligently and effectively.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.