Civil Litigation is a term used to describe the legal process where an individual or a business goes to court to resolve a non-criminal dispute. This tends to involve someone seeking a sum of money. There are other remedies available through civil courts too, such as equitable remedies which are non-monetary. For example, the court can order someone to do something (specific performance) and/or it can stop someone from doing something too (Injunction).
Some case examples that civil courts may hear include personal injury, road traffic accident, breach of contract, landlord and tenant disputes and debt assignments. Civil matters are decided on a balance of probabilities, which means the courts will consider ‘what is more likely’ and whose evidence it prefers.
Taking someone to court can be daunting, as there are heaps of civil procedure rules (CPR) and practice directions that must be followed every step of the way before you find yourself before a judge. Failure to comply with any rules or directions can result in sanctions being imposed. In this article, we will provide a general overview of the steps involved in Civil Litigation, by referring to key procedural rules and timeframes that should be kept in mind.
Pre-action protocols are a series of steps that must be taken before a party issues legal proceedings. Failure to comply with the relevant protocol before issuing proceedings can result in the court punishing you by ordering costs on an indemnity basis (i.e. higher percentage of costs) rather than the standard basis, as one example.
There are different pre-action protocols depending on the nature of the claim. A full list of these can be found by clicking here.
The Limitation Act 1980 limits the time within which certain issues must be brought to court. For example, contract claims must be brought within 6 years from the breach, and personal injury claims within 3 years from cause for complaint.
Once the timeframe has expired you are no longer able to claim. It is therefore crucial that you do not wait too long before taking court action, if that’s what you intend to do and if all other attempts to resolve issues have failed.
Time limits for all claims can be found in the Limitation Act 1980.
Instructing a Legal Representative
You don’t need to instruct a legal representative, however, if you do, it will usually be a solicitor or a direct access barrister.
If you do decide to instruct a legal representative, they will discuss your case, review the prospect of success, provide you with legal advice and inform you of the fees payable for their services and how they are to be paid.
You may be referred to the following funding arrangements, although, payment arrangements and methods are specific to the law firm.
- Conditional Fee Agreement – A conditional fee agreement is often recognised as a no win no fee arrangement. This means you and your legal representative agree that they will only be paid should your claim succeed and if you receive compensation. Any deductions sought will be taken from the damages/compensation you receive.
- Damaged Based Agreements– A damage based agreement is a legal funding arrangement where the legal representatives’ fees will be calculated as a percentage and are contingent upon you succeeding in your claim. The percentage is dependent on the risk the solicitor had to bear.
Alternative Dispute Resolution (ADR)
Litigation is considered as a ‘last resort’ in civil claims, therefore, there is an expectation upon you to have tried some form of ADR either before issuing the legal proceedings or after. There are several ADR mechanisms, however, mediation has proven to be the most popular and effective in the UK and abroad, with up to 80% success rate according to the Civil Mediation Council.
In fact, the court introduced a Small Claims Mediation Scheme for cases valued up to £10,000, which is free to use, with in-house court mediators facilitating the process. Anyone who fails to engage in ADR will have to answer to the court and can also be subject to cost penalties.
Mediation –Mediation involves a third-party facilitator known as a mediator. The mediator will speak to both parties, in turn, to establish the issues in the case and then enter a phase of negotiation to help them reach a mutually agreed outcome. The mediators’ goal is not to decide the outcome of the dispute but to enable the parties to decide for themselves.
Arbitration – This involves a neutral party known as an arbitrator, who listens to both parties in the dispute and decides on the outcome of the case. The judgment provided by the arbitrator is binding on all parties.
Negotiation – Parties to a dispute negotiate the resolution and attempt to reach a mutually agreed position.
Conciliation – Conciliation involves both individuals in the dispute discussing their case in front of an independent conciliator. Both sides can meet with the conciliator together or separately. The conciliator will listen and suggest a settlement to resolve their dispute.
Issuing a claim
To issue a claim, the party claiming a sum of money must complete a claim form (Form N1). The form must include the following information:
- Claimant’s name and address
- Defendant’s name and address
- Brief details of the claim
- Value of the claim
- Preferred County Court hearing centre
- Defendant’s name and address for service (the address which is being used to bring the proceedings to the defendant’s attention).
This can either be issued using the Court’s online service or via post. However, there are certain circumstances where you can only issue a paper form. A court fee will need to be paid upon issuance.
A Part 8 form is used for non-contested issues and/or if there is not a substantial dispute of fact. A typical example includes infant settlement hearings or matters involving protected parties (i.e. someone who lacks mental capacity), where the court is simply being asked to approve the settlement reached by both parties.
Particulars of Claim
Particulars of claim is a document which can be served with the claim form. If it is not served with the claim form, it should be served no later than 14 days after service of the claim form. There are set rules (CPR 16.4) which stipulate what a POC should include.
Service is defined in law as the date upon which an individual/business takes the necessary steps to bring the documents to a party’s attention. There are different methods for service such as personal service (serving the documents in person), first-class post, fax and any other electronic means, such as email. The rules governing service of documents are located under CPR 6.
Responding to a claim and Defence
After the particulars of claim and claim form, are served on the defendant, the defendant must respond to it within 14 days. This is the defendant’s opportunity to respond to the claim either by issuing an acknowledgement of service or defence and/or a counterclaim.
The defendant must include within their defence which parts of the particulars of claim they deny, which parts they neither admit nor deny and lastly, which they admit.
If the defendant requires further time to respond to the claim, they may file an acknowledgement of service. This document will give the defendant a further 14 days to file at court and serve upon the claimant, a defence.
Failure to respond to the claim form within the timeframes above will entitle the claimants to a default judgment.
Case and Cost Management
Once both parties have filed and served their statements of the case (the above documents), a case and cost management hearing may take place.
The court will ask parties to complete a directions questionnaire. This is to support the court in allocating the claim to the appropriate track and to give directions/ a timetable for steps that need to be completed by parties, for example, when disclosure and inspection should take place, when the parties must exchange witness statements and if an expert is permitted.
Small Claims Track – This track deals with cases which are valued below £10,000. However, certain types of claims, such as a personal injury, are capped at £1,000.
Fast Track – This track deals with cases which have a value between £10,000 to £25,000.
Multi-Track – This track deals with cases which have a value above £25,000.
Alongside serving a directions questionnaire, you may also be asked to file and exchange budgets, this document will provide an estimation of costs that you and the opposing side believe will be incurred.
Both sides must file their own costs budgets document. The court will then view these and assess if the projected costs are proportionate and just to the issues in the case. The court can make a cost management order, in some cases, restricting the amount that both parties can spend.
Disclosure and Inspection
Disclosure is where a party in the case will review and disclose to the other, any relevant documents.
Under the standard disclosure rules, you are required to disclose all documents which are in your control, documents that have been in your control previously and may not be now and any other documents which you want to use at trial, which may support your case, oppose your case or support the other’s case.
However, the court does have the power to make a different order as to disclosure due to the menu of options available in the Civil Procedure Rules.
The documents disclosed will be inspected unless the documents are privileged. A privileged document is a document which has been confirmed as existing, but its contents are confidential.
Evidence is presented through witness statements and expert evidence.
A witness statement is the evidence that a party will be allowed to give orally at trial. It must be verified by a statement of truth. During the trial, witnesses will be cross-examined based on their evidence in the witness statement.
All documents in a legal proceeding which need to be verified by a statement of truth can be found here.
Expert evidence may be used in proceedings where specialist knowledge is required to help prove someone’s case. For example, a medical report can be used in a personal injury case to determine the injury sustained by a party, prognosis and recovery time. The report is then used by a legal practitioner to decide how much compensation can be claimed, by referring to the judicial college guidelines and any previous case laws (previous cases).
Solicitors typically instruct barristers to advocate the case before a judge at trial.
At the end of a trial, the judge will deliver judgment and confirm whose evidence it prefers and will make an order. The last thing for the court to consider is costs. The general rule is that the unsuccessful party pays the winning party’s costs (‘the winner takes it all’). However, the judge does have the discretion to move away from this and make a different costs order.