0207 739 1700 info@kobaltlaw.co.uk

Litigation UK

There are usually five stages in litigation.

Pre-commencement

Firstly, the vital point is to identify the client’s objectives, and what the client is really seeking to achieve.

Secondly, it is essential to consider who will constitute all the prospective parties to any negotiations and court proceedings. Once all potential defendants have been identified, consideration must be given to whether each is worth pursuing.

Then, the key task is to collect any relevant evidence, by taking statements from the client and the potential witnesses.

Coming to the dispute resolution, a client should be aware of the event that litigation is only the last resort.

At this stage, it is crucial to inform the client about the legal costs and precisely how are to be calculated and paid for.

It is also fundamental to address the questions of limitation and jurisdiction. For example, if a client is involved in a commercial dispute, it must be checked if the contract provides for any litigation to be conducted in England and Wales or elsewhere.

Coming to the dispute resolution, a client should be aware of the event that litigation is only the last resort. The client must receive a full and frank assessment of the merits of his case and it must be considered with the client what form of dispute resolution would be appropriate.

The steps that parties should take before commencing a court case are governed by pre-action protocols. Indeed, failure to follow a protocol step, will usually incur a sanction for that party if litigation is commenced. It should be highlighted that the Ministry of Justice has approved a number of protocols which set out how parties should behave pre-action in particular types of cases, such as professional negligence claims. In the event that no approved pre-action protocol applies, the parties should follow a Practice Direction on Pre-action Conduct.

Prior to starting proceedings, the parties must give serious consideration to using any suitable form of available Alternative Dispute Resolution (ADR).

Immediately after collecting sufficient evidence to substantiate a realistic claim and before addressing issues of quantum in detail, the potential claimant should send to the proposed defendant a letter detailing the claim. This standard letter before the claim should give to the prospective defendant enough information in order to commence investigations and, at least, put a broad evaluation on the claim, enclosing setting out any proposal he has for ADR.

Finally, the prospective defendant should acknowledge safe receipt of the abovementioned letter of claim and should state whether or not liability is admitted, providing reasons if liability is denied. The potential claimant should also respond to any such allegation before issuing proceedings.

Commencement of the claim

Before starting a court case, the client should be fully aware of what will be involved. More precisely, he should have a good idea of what will happen next, as well as how long that might take and the likely costs.

Proceedings are commenced by lodging at a county court or High Court a completed claim form.

To activate the claim, this must be served on the defendant. The particulars, which are the full details of the claim, must also be served on the defendant.

If the defendant wishes to contest the claim, he must file at the court and serve on the claimant a defence.

The case, then, is allocated to a particular track.

A claim of up to GBP 5,000 will usually be allocated to the small claims track.

Claims exceeding GBP 5,000 and up to GBP 25,000 are usually allocated to the fast track.

Claims exceeding GBP 25,000 are usually allocated to the multi-track.

Interim matters

Once on a track, the court will give to the parties directions as to the steps that must be taken to prepare for trial. A strict timetable will be imposed as to when each step must be taken.

On the small claims track and fast track the expectation is that these directions can be given without any court hearing.

In multi-track cases of any complexity, it is usual for the parties to meet with a judge at a so-called case management conference in order to clearly define the issues in dispute and determine what steps need to be taken and when, in order to prepare for trial.

The most common case management directions are for:

  • Standard disclosure (i.e.: the parties list the documents in their possession that they intend to rely on);
  • The exchange of evidence before trial that the parties intend to rely on (eg, experts’ reports and statements).

In addition to case management directions, parties may during this stage apply to the court for any specific orders that might be required.

Trial

A trial on the small claims track is informal and conducted at the discretion of the judge.

The formal rules of evidence apply on the fast track and multi-track.

As to costs, the judge will decide if any party should pay the other’s costs and, if so, how much (known as a summary assessment of costs).

On the multi-track, the trial judge will decide who should pay the costs and the general rule is that the loser pays the winner’s costs.

Post Trial

The most common case management directions are for:
Standard disclosure (i.e.: the parties list the documents in their possession that they intend to rely on);

The exchange of evidence before trial that the parties intend to rely on (eg, experts’ reports and statements).

In addition to case management directions, parties may during this stage apply to the court for any specific orders that might be required.

Please contact Stefano Lucatello or Ali Onur Ulusakarya for further information
Direct Tel: +44 (0) 207 739 1700