When you’re involved in a litigious process, it can feel like there are many moving parts happening simultaneously. And often that’s true! The nature of litigation is quite reactive and as new facts come to light, the strategy changes.
But there is a linear process that happens in all claims in the High Court. And the rules that litigators adhere to are set out in a big White Book of the Civil Procedure Rules.
So what can you expect in a cradle-to-grave claim?
The Pre-Action stage
The pre-action protocol is in place to help the parties to understand each other’s positions on the dispute, and make decisions about how to proceed. This stage usually involves (as a minimum):
· The claimant’s letter before action
· The defendant’s response
The purpose of this stage is to reduce the costs of resolving the dispute. It may be the case that after exchanging these letters, the parties can come to an agreement without the need to issue proceedings.
If it hasn’t been possible to find a resolution at pre-action stage, the dispute is escalated through the pleadings stage. This is the point at which the claimant has skin in the game. The claimant will have to pay a fee to issue the claim, and if they discontinue they are likely to have to pay the defendant’s costs.
The pleadings open with the claim form and particulars of claim. The defendant will then
prepare, issue and serve its acknowledgement of service, defence and counterclaim (if it has one). If necessary, the claimant will then serve a reply, and its defence to the counterclaim if there is one.
That is usually the extent of the pleadings. In some cases, amendment will be made to pleadings to you end up with ‘re-amended particulars of claim’ or ‘re-re-amended defence’ etc.
Costs and Case Management Conference (the CCMC)
Once the pleadings have closed, the costs and case management conference (CCMC) is the first direct interaction with the judge. The CCMC is usually a hearing between the parties and the judge and it can be held in person, over the phone, or commonly now via Microsoft Teams.
At this hearing, the parties will agree the directions and costs budgets up to trial. The ‘directions’ are the case management steps that the court expects the parties to take before trial, such as the timetable for disclosure, witness statements, and expert evidence (if necessary).
The trial date, or at leas the trial window, will be set at this stage.
Disclosure is a complex, cumbersome and expensive stage of litigation and often parties use the avoidance of disclosure as leverage to settle a dispute. Disclosure is a review of all of the documentary evidence that support, and hinder your case. Once the lawyers have prepared their client’s disclosure, it’s time to inspect the other side’s disclosure.
The documents are the evidence that build (or destroy!) your case. The hope of disclosure is to find the ‘smoking gun’ that gives you the slam dunk advantage in the dispute, but in reality these sorts of highly incriminating documents are rare.
The witnesses are there to give evidence of fact, in an attempt to clarify exactly what happened, and what they recall of the facts around the dispute. The witness prepares a written witness statement, on which they may be asked questions (cross-examined) during the trial.
Expert evidence isn’t required for all cases. But some cases require an expert opinion to direct the judge on technical matters. For example, an expert may give their professional opinion on the suitability of a medical procedure that went wrong, or on the reasons why a car engine failed, or the counterfactual financial implications of a deal.
The expert will prepare a written report of their opinion on the technical issue(s).
The pre-trial review (PTR) is another administrative hearing at the court. It’s a short check-in with the parties and the judge to check that the parties have complied with the directions and timeframes that were given at the CCMC. At this stage, the timetable for trial will be finalised and the parties agree which issues are still in dispute, now that all of the evidence has been considered.
Trials can last days, weeks or even months depending on the amount of evidence there is to present to the court. The barristers will make submissions to the court, and witnesses will give their evidence. The trial is where all of the evidence and relevant case law gets put before the court so that the judge can make a decision.
It’s unusual for a judge to give his or her decision immediately after trial. Usually, they will take at least a few days (for smaller cases) to consider the evidence and write their judgment. The judgment will then be circulated to the parties setting out the judge’s decision, which in civil cases usually includes an order for damages and costs.
Following receipt of the judgment, there may be an appeals process if one of the parties thinks that the judge has erred in law in coming to their conclusions.
In an ideal world, the losing party pays the winning party what they are owed in accordance with the judgment. Or at least the parties agree some form of payment plan. If payment is not forthcoming, then it may be necessary to take additional steps by way of enforcing the judgment.
Stages that run parallel to litigation
So that’s the life-cycle of a typical litigation process. But at any point during litigation, the parties can settle the dispute out of court.
Settlement is highly encouraged by the courts and often costs sanctions are imposed on any party who refuses to at least try to settle before trial. Settlement is discussed ‘behind the scenes’ so that judge is not aware of the content of any settlement discussions, which are all conducted ‘without prejudice’ to the litigation. These discussions can happen in writing, or in a meeting between the parties, or in a more formal setting with an independent mediator (during mediation).