Managing the Litigation process
How you can give yourself the best possible chance of winning in court.
Once you have made the decision to start the litigation process, there are strict timetables and rules that you need to follow to ensure you give yourself the best chance of succeeding. Below are the different steps of the litigation process and what you need to do at each stage.
Ensure you meet the Court regulations
The rules that regulate the Court's procedure are the Civil Procedure Rules ("CPR") and the aim of these rules is to ensure that all cases are dealt with fairly, expeditiously, and as cost-effectively as possible. This is called the "overriding objective" and it's the duty of all parties to meet this objective and those that fail to do so may be punished. It's therefore imperative to follow the rules and to any timetable laid down by the Court.
Be able to show evidence of Pre action
Before Issuing a Claims form you may need to be able to show the court that you have attempted to resolve your dispute with your debtor before taking court action. There have been recent cases where creditors have won their cases but did not get its costs because the Court concluded that it had unreasonably refused to attempt Alternative Dispute Resolution. ADR may be a very informal meeting between the parties, a rather more formal discussion between them assisted by a professional mediator, or even what amounts to a mini-trial at which a professionally qualified expert makes judgments on the issues between the parties who are represented by Counsel and by solicitors.
Start issuing proceedings
To start court proceedings, you must send a Claim Form to the Court identifying the parties, the addresses and the type and value of the claim. You also need to send a copy to each defendant and one for the Court to seal and return to the Claimant. Once issued, if you feel you'll have difficulty in getting your debtor to sign for it, then use a Sheriffs Officer to serve the papers. You need to ensure you send a "response" pack with the Claim that contains a number of forms that gives the Defendant a choice as to how they are going to respond to a claim i.e. admit it, admit part and defend part or defend the whole of it.
The acknowledgement of service and defence
This is where time starts to run. The Defendant must file either a defence or acknowledgement of service with the Court within 14 days of receiving the Claim Form.
Do you need to apply for Judgment in default?
If the above aren't filed then you can apply for a Judgment in default. It's important to keep diary notes of dates of service and check with the court that to see if the defendant has filed anything. The Defendant can apply to set this aside but needs to show why no defence was filed in time and he may be liable still to pay for your legal costs.
Complete information to ensure your case is allocated to the correct "track"
If a defence is received, the Court will send you a copy along with an "allocation questionnaire" which is also sent to the Defendant. The Allocation fees are payable by yourself and the information gathered by the questionnaire will determine which "track" it will be allocated to. This will be either the Small claims, fast or multi track depending on the value and complexity of the claim. There may also be cost implications for yourself at this stage.
Be organised - The Directions Order and Case management
At the Allocations stage, the Court will give directions that are agreed by both parties. These have a timetable and may include directions such as a hearing date, allocation to the appropriate track, requests for disclosure of documents and an exchange of witness statements, which must contain the "statement of truth". It's a good idea to number these bundles of documents so they can be easily referred to in court and ensure you have all the relevant documents. If you don't follow this you risk heavy penalties or your case been thrown out. You must also remember that your duty of disclosure continues until proceedings are closed so you must disclose any new documents that come to light.
Trial or Final hearing
If you're on the small claims track then this will be an informal process, otherwise the procedures will be a formalised process. You must be represented, usually by a barrister, and they will present their evidence first. It's then the turn of the defendant before both parties make their closing submissions to the judge.
Ensure you are fully aware of the costs involved
As a general rule, the loser pays winners costs, with the exception being in the small claims track. Costs are a complex area and have important implications for all involved or thinking about litigation. You must bear in mind that you're unlikely to recoup 100% of the costs and it's up to the Court's discretion to decide how the costs should be allocated.
In Summary
To take a company or individual to Court is a big decision and there are many considerations you need to take into account to make sure it's the right one. Ensure you have tried everything possible first, but if you do go down the route of court action, then you must follow the timetable and directions that the Court lays out.
