This guide provides a general overview of the litigation process in England and Wales when starting or defending a civil claim. It is not comprehensive.
It is impossible to state with certainty exactly what will happen at the beginning of litigation. Each situation is unique and the precise steps taken will vary according to the overall circumstances of your case, what actions are taken by the parties and what orders are made by the court.
Litigation requires a significant commitment from you and your organisation. We will need you to assist with the preparation of documents and potentially attend court to give evidence.
Please contact us if you have any questions or would like more information.
The overriding objective
Litigation in England and Wales is governed by the Civil Procedure Rules, known as the CPR. The overriding objective of the CPR is to enable the court to deal with each case justly and at proportionate cost. This will include making orders that take into account the importance and complexity of a case.
Pre-action protocols
There are a number of pre-action protocols that exist. These set out the actions and approach the court expects from the parties. They are designed to increase the chance of a case settling before going to court, narrow the issues and control costs. The court may award a costs penalty against a party that does not comply with a pre-action protocol.
Counsel
We will need to instruct a barrister to represent you in court and assist with the preparation of your case strategy. We will help you to instruct a barrister in due course.
Statements of case
Each party must prepare certain documents which are collectively known as statements of case. They must be filed at court, served on the other party and verified by a statement of truth. Any untrue statement made to court can result in proceedings for contempt, so it is important to take care and pay attention to detail. Statements of case comprise the following documents:
Claim form
This is prepared by the claimant and starts proceedings. It describes the nature of the claim and what remedy the claimant wants to obtain such as damages. It must be served on the defendant within four to six months of being issued by the court, depending on where the defendant is located.
Particulars of claim
This provides the full details of the claim and must be served on the defendant within 14 days of service of the claim form.
Acknowledgment of service
The defendant must file an acknowledgement of service within 14 days and state whether the claim will be defended.
Defence and counterclaims
This provides a defendant’s answer to the claim form and particulars of claim. For each aspect of the claim, the defendant must provide an admission, denial with reasons or require proof. A defence must be filed within 14 to 28 days depending on whether an acknowledgment of service has been filed. If no defence is filed, then the court may award the claimant judgment in default. Any counterclaims can be made by the defendant against the claimant at the same time as filing the defence.
Additional documents
A claimant can choose to file a reply to the defence but is not required to do so and does not make any admission by not doing so. Statements of case can also be amended provided that the court grants its permission.
Summary judgment
Either party may apply for summary judgment. This means that the court will make a decision at an early stage without holding a full trial. Summary judgment will be awarded where the court decides that a claim or defence has no real prospect of success and there is no good reason why it should continue to trial.
Strike out
The court can strike out a party’s statements of case in whole or in part if there are no reasonable grounds for starting or defending proceedings, the proceedings are an abuse of process or a party has not complied with the CPR or a court order.
Security for costs
A defendant might incur significant expense in successfully defending proceedings. If it does so and the claimant is ordered to pay some of its defence costs, it will want to know that these can be paid. Where it is just to do so, the court will order a claimant to pay money into court to act as security for payment of these costs.
Interim injunctions
An injunction is an order that requires a party to take or not take a specific action. For example, a freezing injunction requires a defendant to preserve their assets and prevent them from being dissipated. The party that applies for an injunction will usually be required to provide an undertaking in damages. This means that if an injunction is wrongly granted, the applicant will have to compensate the respondent for any loss it has incurred as a result of the injunction having been wrongly granted.
Directions questionnaire
The court will allocate a case to the small claims track, fast track or multi-track depending on its value and the answers provided in a directions questionnaire completed by the parties. The parties must also submit a detailed costs budget.
Case management conference
A case management conference, known as a CMC, is a procedural hearing at which the court gives directions for the conduct of the case until trial. A CMC is held only in appropriate cases. It will give directions on the issues in dispute, set a timetable for disclosure and inspection of documents, exchange of witness evidence and skeleton arguments and set a trial date.
Settlement
The parties are encouraged to consider settlement at all stages of the litigation process. This can be facilitated by mediation, without prejudice meetings between the parties and their lawyers and making part 36 offers. Mediation is a confidential process in which a neutral mediator encourages discussion between the parties in the hope of reaching a settlement. What is discussed at a without prejudice meeting remains private and cannot be disclosed to the court except in certain circumstances. Part 36 offers are where one party makes a settlement offer. If the other party does not accept that offer and does not obtain a better result at trial, they will be ordered to pay some of the costs incurred by the party that made the offer.
Evidence
The court assesses a claim on the balance of probabilities. It will do this by considering documents, witness evidence and any expert reports.
Witness evidence is provided by written witness statements. So far as possible, a witness statement should be in the witness’ own words, say which statements are made from within their own knowledge and refer to any relevant documents. A witness statement usually stands as evidence in chief. This means that its contents do not need to be read out to the court. A witness can, however, be cross-examined by the other party’s barrister.
A party can apply to court for permission to call expert evidence. This is used when a case involves foreign law or specific knowledge and skills such as a report prepared by a doctor about a person’s medical condition or a surveyor about the value of a property. The court sometimes orders that evidence must be provided by a single joint expert on behalf of both parties. The expert’s duty is to the court rather than the parties. Where both parties instruct their own expert, they will exchange reports, ask questions and the experts will try to provide an agreed opinion on the issues involved.
Disclosure
Each party must provide documents to the other party which are relevant to the claim. This rule applies regardless of whether a document supports or undermines a party’s position. Disclosure and inspection of documents is often time-consuming and expensive. All documents must be preserved as soon as litigation is contemplated and there can be serious consequences for any non-compliance with this rule.
Documents that are privileged do not need to be disclosed. Legal advice privilege protects confidential communications between a lawyer and their client. Litigation privilege protects communications produced for the purpose of litigation between a client or their lawyer and a third party subject to further criteria.
Trial bundles
Trial bundles comprise the statements of case, copies of the court’s orders and the key documents. They are usually prepared by the claimant’s lawyers in co-operation with the defendant’s lawyers.
Preparation of skeleton arguments
Each party must provide the court and the other party with a copy of its skeleton argument. That document argues a party’s case and is often prepared by a barrister.
Trial and judgment
It can take at least 6 to 12 months to reach trial after proceedings have been started. The duration of any trial depends on the complexity of the facts and legal principles involved and how much witness evidence the court is required to consider. It can range from one day to several weeks.
Almost all civil court proceedings in England and Wales are held in public and heard by one judge sitting alone. There are few exceptions. Juries usually sit in criminal rather than civil trials.
The court might provide its judgment immediately at the end of a case. In practice, it will often reserve its judgment, meaning that it will be provided at a later date.
Costs
The general rule in litigation is that the losing party pays the costs of the winning party. You will not recover all of the costs you incur in starting or defending a claim. The amount recovered depends on the overall facts of the case and the court has a wide discretion to make a costs order it considers appropriate. It will consider the conduct of the parties and any settlement offers made. The amount of costs paid is also decided by a separate assessment process carried out by a specialist judge unless the parties agree an amount. The starting point is that costs must be reasonably incurred, reasonable in amount and proportionate. The costs budget submitted to court by each of the parties will also be taken into account.
Enforcement
A losing party hopefully respects the court’s order or judgment. If it does not, the winning party will have to take further action to enforce that order or judgment. This could involve seizing and selling assets or an attachment of earnings order under which part of the losing party’s earnings is paid to the winning party until they have been paid in full.
Appeals
A losing party can apply for permission to appeal an order or judgment of the court. An appeal must usually be made within 21 days. It must be made on the basis that an order or judgment was wrong, unjust or there was a serious irregularity in the proceedings.