Your jargon buster for your litigation case.

Transcription

1 Your jargon buster for your litigation case. Your guide to litigation. dbslaw.co.uk Birmingham - Nottingham

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3 Contents Page Introduction Court Process Preliminaries Pre-Issue and Trying to Reach a Settlement Issuing Proceedings Pleadings stage Allocation Disclosure of Documents Witness Statements Trial Bundle The Trial Costs Information Funding options Alternative Dispute Resolution DBS Law Limited - Your guide to litigation 1

4 Introduction At DBS Law we understand that the Court process can often prove unfamiliar and complicated. The purpose of this guide is to provide some clarity on the main aspects of the Court process and the various stages involved in a Court claim. If there is anything in this guide which is unclear, please do not hesitate to ask for further information. The Court Process The typical stages of a Court Action are as follows: Stage 1 Stage 2 Stage 3 Stage 4 Stage 5 Stage 6 Stage 7 Stage 8 Stage 9 Stage 10 Stage 11 Stage 12 Stage 13 Stage 14 Pre-action protocol period and consideration of Alternative Dispute Resolution Issue of Proceedings Acknowledgement of service ( AoS ) within 14 days of receipt Defence within 28 days of service if AoS filed request judgment if opponent defaults on either stage 4 or 5 Allocations Disclosure of evidence Inspection of disclosure documents Exchange of Witness Statements Exchange of Expert Evidence (where necessary) Pre-trial checklist and review Trial Judgment Costs Enforcement 2 DBS Law Limited - Your guide to litigation

5 Pre-action protocol Issue claim form and particulars of claim (to be served within 4 months of issue) P36 off to settle Alternative DIspute Resoluton (mediation) Serve claim form Particulars of claim (to be served within 28 days of service of claim form) Acknowledgement of service (to be filed within 14 days of service of claim form) Defence and counterclaim (to be served within 28 days of service of claim form) (Reply and defence to counterclaim) (Request(s) for further information) Allocation questionnaire Judgment in default if no defence Preliminary issues (usually dealt with around this stage) Summary judgment / strike out Stay of proceedings for Alternative Dispute Resolutions Case management conference Order for standard directions Disclosure (to be served within 28 days of service of claim form) Exchange of witness statements Exchange of expert evidence Pre-trial checklist and pre-trial hearing Trial Judgment and order for costs DBS Law Limited - Your guide to litigation 3

6 Preliminaries Court Rules: All Court proceedings are governed by the Civil Procedure Rules. These rules set out how parties to a dispute must conduct themselves. The rules can be found on the Court Service website at Your Case: Apart from actual Court hearings, your case will mainly be presented on paper. The reason behind this is to allow your opponent to understand the full basis of your case and decide whether or not they wish to continue with their claim or defence. It also allows you the chance to consider your opponent s case. We will prepare the Statements of Case for your claim. Statement of Truth: For the most part, every time that a document is submitted to the Court it must contain a statement of truth either signed by you personally or by ourselves on your behalf. By signing the statement of truth you are confirming to the Court that you have an honest belief in what is contained in the document. If as the case proceeds, it is discovered that what you have said is untrue or you have misled the Court, then the Court can find you have been guilty of Contempt of Court and can impose a fine or imprison you. It is therefore extremely important that whenever we provide you with a document which is endorsed by a statement of truth, that you carefully read the document and ensure it is accurate. Please tell us immediately if anything in that document is incorrect. Pre-Issue and trying to reach a Settlement Before you issue proceedings you are required to set out in detail exactly what you are claiming from your opponent and why, together with the value of your claim and how this is calculated. If you are defending a claim, you must set out your reasons for doing so. In some types of cases, such as professional negligence, the Court rules sets out a specific procedure that must be followed called a pre action protocol. Even where there is no specific protocol, you are also required to try and explore with your opponent whether you can settle your dispute without the need for the Court s intervention. This Pre-action protocol stage can often run into several months. However, it is extremely useful as it often enables us to draw out from your opponent more details as to why they are disputing or bringing their claim. This enables us to predict more accurately your chances of success and so ultimately whether the expense of proceedings can be avoided. If you do not try to settle your case or fail to tell your opponent about your case then the Court may penalise you later if you were to win your case, by not ordering your opponent to pay all of your costs. 4 DBS Law Limited - Your guide to litigation

7 Issuing Proceedings If we have not been able to negotiate an acceptable settlement, then either your opponent will issue proceedings or you will have to decide whether to instruct us to issue proceedings on your behalf. This is not a step that should be taken lightly. In order to issue proceedings we will take detailed instructions from you on all of the facts which are important to your case. Your claim form will have to give your opponent a summary of why you are making your claim and how you have calculated what is owed to you. Sometimes we will advise you that a Barrister should draft this document. If you are bringing the claim, you will be referred to as the Claimant. If you are defending the claim you will be known as the Defendant. Once proceedings have been issued if you wish to withdraw those proceedings, for any reason, you will normally have to pay your opponent s costs. Once you have issued proceedings then your opponent has 14 days with which to acknowledge that they have received the claim form and indicate whether they intend to defend the claim. If they do not acknowledge receipt then you may enter a default judgment against them and you can then enforce your claim. Pleadings stage Pleadings is another name for the formal written documents which set out each party s case. The case begins with a claim form and Particulars of Claim setting out in full the details of the Claimant s case. This is delivered (or served ) on the other party ( Defendant ). Once proceedings have been served the Defendant must tell the Court that they have received those proceedings and must do so within 14 days. This is known as acknowledging service. The Defendant must then, if defending, also file a defence with the Court within 28 days of receiving the proceedings. The parties may agree to extend the time for filing the defence by up to 28 days without the permission of the Court. Once the Defendant has put in his defence, the Claimant can answer it by issuing a reply but this is not always necessary and we will advise whether this step is needed. The defence sets out the basis on which the Defendant opposes the claim. If the Defendant believes that they have a claim against the Claimant they can issue a counterclaim (or Part 20 Claim) against the Claimant. If you are a Claimant and your opponent has issued a counterclaim you are required to respond with a defence to counterclaim setting out the basis on which you resist the claim. DBS Law Limited - Your guide to litigation 5

8 Allocations Allocation Questionnaire Once the above steps have been completed, the Court will ask each party to complete an Allocation Questionnaire. This form provides practical details about the case. We will complete this on your behalf. The Court normally gives each party 28 days to complete the questionnaire. There is a fee payable to the Court at this stage. The Court expects the parties to try and agree a timetable (also known as directions) as to how the case will proceed. The timetable will set out when certain steps in the proceedings should take place. Set out below are the usual steps that must be taken:- Disclosure This means disclosing to your opponent a list of all the documents that you have in your possession that are relevant to your case; Inspection involves you providing a copy of any document on that list at the request of your opponent unless they are privileged and we will advise you on dealing with any disclosure request; Exchange of written witness statements; Exchange of Experts reports if Experts are involved. Completion of a Pre-Trial Checklist Hearings may be listed during the above stages and are referred to as Case Management Conferences ( CMC ). These allow the Court to ensure the matter is being adequately prepared for Trial. Occasionally we may advise you to make an interim Application which will seek an order from the Court pending Trial. An example of such an Application would be for disclosure of a document where the opponent is refusing to provide inspection. Your opponent is also able to make an Application. The Court will fix a date for the trial when the timetable is completed. Track Allocation Once Allocation Questionnaires have been completed the Court will decide how the case should proceed and what steps should be taken in your case by deciding which Court track the case should be allocated to. There are three tracks: Small claims, Fast track and Multi track The track is allocated mainly by reference to the monetary value and complexity of the claim. It will normally take between 14 and 28 days for the Court to allocate your case to a track. 6 DBS Law Limited - Your guide to litigation

9 Allocations continued Small Claims This track is currently for claims with a value not exceeding 10,000 (excluding Personal Injury claims). The small claims procedure is designed to encourage parties to conduct cases themselves. Usually if you win your small claim case the Court will not order that your opponent pay your costs save for in limited circumstances which we can advise you on. It is normally therefore more cost effective for you to prepare and conduct the case yourself with occasional advice from us at key stages. A small claims matter will typically be listed for a hearing within 3 months from issue. The Court will tell you what you need to do to prepare your matter for trial. Fast Track This track is used for claims with a value between 10,000 and 25,000. Parties are required to follow a set of directions to prepare the case for trial. A trial date is normally fixed within about 6-9 months depending on the Court resources available. Cases are usually heard by a District or Deputy District Judge sitting alone. Multi Track This track is used for claims of high value or where there are complex questions of law. This track is reserved for complicated matters. Trials will usually last in excess of one day. Cases are usually dealt with by a senior level Judge. DBS Law Limited - Your guide to litigation 7

10 Disclosure of documents As part of the litigation process you will be required to disclose to the other side all documents that exist or which have existed and which are relevant to the case. A party discloses a document by stating that the document exists or has existed and includes documents you no longer have in your possession or control. The duty of disclosure can extend to documents held other than by you, for example, papers held by an Accountant or other professional advisor. The meaning of the word documents is anything in which information of any description is recorded. This includes the obvious such as correspondences, notes and diaries, tape recordings, video recordings and photographs. It also includes information held on computer systems, other electronic devices and media (including PDAs, mobile phones etc), includes servers, back-up systems. It goes as far as to include electronic documents that have been deleted, s and other electronic communications (e.g. SMS or MMS messages), spreadsheets, databases, web-based applications, etc. Additional information stored and associated with electronic documents (known as metadata) falls within the category of documents. The following documents must be disclosed:- Documents on which you seek to rely; Documents: which adversely affect your own case, or which adversely affect another party s case; Documents which support another party s case; and Documents that are required to be disclosed by the Court. You are required to make a reasonable search for documents that need to be disclosed. Exactly what this means will depend upon the number of documents involved, the nature and complexity of your case; the cost and difficulty of retrieving a document and the significance of the document or category of documents likely to be found by the search. Documents are disclosed by list. Both you and your opponent can request copies of any of the documents in either of your lists. There is an ongoing obligation of disclosure throughout the case. This means that if you subsequently discover documents that you have not previously disclosed then you must disclose them to your opponent immediately. 8 DBS Law Limited - Your guide to litigation

11 Witness Statements As a general rule the Court requires all parties and witnesses to provide their evidence in the form of a written witness statement. We will normally prepare your own witness statement from the instructions we receive. You are required to carefully read through the statement to ensure that it is entirely accurate. You will have to sign a statement of truth. If the matter proceeds to trial, you will be cross-examined upon its contents. The Court will set a date upon which you must exchange with the other party all of the witness statements supporting your case. Expert Witness If your dispute involves technical issues, it may be necessary to instruct an Expert. The Court prefers the parties to a dispute to agree the identity of a single Expert if at all possible. However, sometimes each party will be allowed to appoint their own Expert. If an Expert is necessary we will advise you further on this. Trial Bundle In the lead up to the trial, the Claimant must prepare a bundle of all pleadings, relevant disclosure documents and Court Order and witness statements. This will be used at trial by the parties, their advisers, the witnesses and the Judge. The Trial The number of witnesses and the complexity of your case will determine how long your case will take. As the case proceeds towards trial we will discuss with you the appropriate advocate to represent you at the trial hearing. DBS Law Limited - Your guide to litigation 9

12 Costs Information How we charge you We will charge you on an hourly basis unless we agree an alternative method of funding with you. The hourly rate varies depending on the experience of the Solicitor who acts for you. Hourly rates are reviewed each year. We record time in units of 6 minutes. 1 unit of time will be charged at a tenth of our hourly rate. We will charge 1 unit when we receive a letter or on your behalf. Any short standard letter or will be charged as 1 unit. A telephone call up to 6 minutes long will be charged as 1 unit. Any other work that we have to do will be timed and charged. Please note that unless otherwise agreed in writing our charges are not connected in any way with the amount you recover, the size of your claim, whether you win or lose or whether you ultimately recover any money from your opponent. You will always be responsible for our costs. Please also refer to DBS Laws Terms of Business which have been supplied to you. These apply in all cases. Court Fees At various stages of your case you will be required to pay Court fees. They are fixed sums and are recoverable from your opponent if you succeed. You will be required to pay these to us before we pay them on your behalf. 10 DBS Law Limited - Your guide to litigation

13 Funding options Traditional Forms of Funding Hourly Charges Unless we agree an alternative form of funding with you we will expect you to pay for the work we do for you on the hourly rate that we will notify you of at the beginning of your case and which are set out in our standard terms of business. The benefit of this type of funding is that you retain full control of your case. All of the other options described below involve third parties. If a third party becomes involved in funding your case it is usual for them to have some say in how your case is conducted and, in most cases, they will expect to share in any rewards. Funding from a Third Party This could be from a trade union, family member or employer. We are happy to discuss this option with you. In such cases we usually require the third party to formally guarantee your costs. Risk Sharing with Us There are a number of options now available to share the risk or the rewards of pursuing a case. Any such agreement is a joint venture. We will therefore require a direct say in the conduct of the litigation. If you want us to consider entering into any risk sharing agreement with you we first carry out a risk assessment at the beginning of the case. Further risk assessments will be carried out at various times during the case. We will usually require you to pay for the risk assessments. An adverse outcome could result in us withdrawing from the case or conducting it as we choose. You will be required to sign a formal agreement setting out the terms of the funding agreement. Conditional Fees These are often referred to as no win, no fee arrangements. If we enter into such an arrangement and you lose your case we will make no charge for the time we spend in preparing your case. However, you will still have to pay any out of pocket expenses incurred together with any costs which are awarded to your opponent. You can insure against the possibility of having to pay your opponents costs and we are happy to discuss after the event insurance options with you. If you win then we will charge a success fee in addition to our normal charging rate. This will be agreed with you at the outset. Your opponent can be ordered to pay some or all of the basic charges but the success fee would have to be borne by you and is not recoverable from the opponent. Damages based agreements These arrangements are also provided on a no win, no fee basis but if you are successful in the case you agree to pay us an agreed percentage of your recovery. DBS Law Limited - Your guide to litigation 11

14 Insurance Policies Before the Event Policies Generally known as legal expenses insurance policies. These provide legal costs cover in the event you have a legal problem. They can be purchased in their own right. Alternatively, this cover exists as an add-on to another type of insurance policy, such as household, car or public liability insurance policy. You should check any policy which you may have and if relevant provide us with the details. There will often be a limit on the amount of costs which such a policy will cover. After the Event Policies These policies are taken out after the case has arisen. They are designed to contribute to the cost of litigation once a dispute has arisen. Insurance can be obtained to cover: Your opponent s costs Your costs or any expenses (known as disbursements) that you incur in the course of the proceedings; or Both your costs and your opponent s costs. Payment is usually only made by the insurer if you fail completely with your case. There will be other clauses limiting the insurance company s risk. You should be aware that in most types of after the event insurance the premium is often substantial ranging between 20% and 40% of the sum that you are insuring. If you are successful you are unlikely to recover the After the Event insurance premiums from your opponent. We will be happy to give you the names of brokers who deal in this market. You should take care in choosing your insurance advisers and the policy, as this is a complex, specialised and fast moving market. Alternative Dispute Resolution There is a positive duty upon you to try and reach an amicable settlement with your opponent before the matter reaches trial. Most cases settle before trial. Settlement can be achieved through correspondence, meetings or a formal mediation. A formal mediation makes use of a trained mediator who is employed by both parties. The mediator seeks to facilitate discussions in the hope that the parties can reach agreement for the disposal of the case. We will discuss this with you further at the appropriate time. 12 DBS Law Limited - Your guide to litigation

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