This article sets out an overview of the stages of the civil litigation process.
Each stage presents a variety of challenges and technical issues, and you can find out more about each by reading the more detailed FindLaw articles referred to at the end of this article.
Establishing whether you have a claim
There are lots of different types of possible civil claims. You may have been injured or defamed. You might be owed money by someone who has failed to pay, or you may have contracted a disease as a result of some condition in your workplace.
In each of those cases, your first step is will be to establish whether you have a claim. Ordinarily you will do this be getting the advice of a solicitor, who will consider the law together with the relevant facts and decide whether you might have a valid claim against someone else.
Assembling your case
If your solicitor thinks that you may have a valid claim, the next step is for you to instruct your solicitor and agree a fee arrangement, In some cases, you and your solicitor might agree to use a “no win, no fee” conditional fee arrangement.
Once instructed, your solicitor will begin putting together the various elements of your case. She will interview witnesses and prepare witness statements, assemble and preserve relevant documents. She may also need to assemble and preserve physical evidence, photographs, etc., hire experts, and instruct a barrister. She will determine who and where the defendant is, and will consider the applicable limitation period.
She will also examine the facts, evidence and legal aspects of your case in more detail, and work out the legal framework for your claim.
Pre-action correspondence, negotiation and protocols
The pre-action period may be the most crucial stage in the life of your case. Civil litigation is governed by pre-action protocols, which are essentially court rules governing the conduct of the parties before they issue any formal court proceedings. There are different protocols for different types of claims (personal injury, debt collection, and so forth) and there is also a court practice direction on pre-action conduct that applies generally in all civil litigation matters.
Essentially, the pre-action rules require that the claimant provide the defendant with a detailed “letter before claim” setting out the claimant’s case. The defendant then has an opportunity to respond. Once that process is underway, and the parties get an understanding of the strengths and weaknesses of their respective sides of the case, they might consider alternative dispute resolution (ADR) and/or settlement.
Offers to submit to ADR and offers to settle become particularly significant at this point. There are two reasons for that. First, the use of ADR (if it is used) and the tactics and substance of settlement offers are likely to affect the outcome — especially since the vast majority of cases settle before they get to trial.
Second, if your case does get to trial, the court will, in assessing costs, consider the manner in which each party has approached discussions about ADR and settlement. If a party does not conduct such discussions in good faith, then the court will almost certainly hold that party to account when it assesses costs.
If the pre-action correspondence and negotiation does not resolve your case, you will need to decide whether to institute formal court proceedings. Your solicitor will also advise you as to which court should hear your case. Depending on the amount at stake and the type of case, it could be heard in the county court, the High Court or possibly a tribunal. In certain cases you will have some measure of choice, since there is a degree of overlap in the jurisdiction of the different courts.
To initiate proceedings, your solicitor will submit a claim form, which will include particulars of your claim, to the court and to the defendant. In response the defendant must file either: (i) an acknowledgment of service (which is usually used where the defendant needs more time to prepare a defence or disputes the jurisdiction of the court); (ii) a defence; or (iii) an admission. If the defendant takes no action, then in most cases the claimant can have the court enter a default judgment against the defendant.
The court will allocate your case to a particular track (fast track, small claims track or multi-track), depending on a variety of factors such as the amount in dispute and the complexity of the case. There are certain rules that are different for each track. For example, in a fast track case the court will usually give a standard set of case management directions that govern the way the case is to proceed, whereas in a multi-track case (which will usually be more complex), the court may hold a case management conference or pre-trial review and give a more bespoke set of directions.
Only a relatively small proportion of civil litigation cases actually make it to trial. Most are settled before trial (which the courts strongly encourage).
A trial is an extended court hearing, usually scheduled well in advance, at which the parties present their evidence-in-chief. Ordinarily, each party’s own witnesses simply confirm the truth of their witness statements and, possibly, give some limited testimony amplifying points made in their statements,
Perhaps one of the most significant features of a trail is cross-examination, whereby a party questions the opposing party’s witnesses. That is what gives each party the opportunity to challenge the other party’s evidence, and thus to reveal any defects in the other party’s case. Following cross-examination, the other party gets an opportunity to re-examine its own witness in relation to any issues that were raised on cross-examination.
After presenting their respective cases, each party’s advocate gives a closing speech before the trial concludes.
Judgment and Costs
After trial, the court will give its judgment. Sometimes the court will do so on the same day as the trial finishes, and sometimes the court will reserve judgment for a later date (giving it time to consider the evidence and reach a conclusion, which the court will generally need after a long and/or complex trial).
In giving its judgment, the court will assign liability, give an award of damages (or other money judgment), and make an order as to interest and costs.
In relation to costs, the general rule is that the losing party pays the winner’s costs. Costs awards are, however, usually subject to certain limits, the effect of which are that the winner generally recovers only a proportion of his costs. In awarding costs, the court will take into account the parties’ conduct, and in particular whether each party tried in good faith to resolve the dispute prior to trial.
A court’s award of damages or other monies is not self-enforcing. Therefore, it is sometimes necessary for the winning party to take separate enforcement action against the losing party in order to compel payment. There are a number of methods of enforcing a judgment, but in general each of them requires a further court order (and additional costs).
Broadly, an appeal is a means of attempting to correct an error by the trial court that adversely affected the party bringing an appeal. Sometimes, a party will appeal because some aspect of the law affecting the case is not well settled, and the party will ask the appeal court to determine whether the trial court correctly applied the law.
In general, you need permission to appeal — either from the trial court or from the appellate court. There will also be costs implications, so if you lost at trial you might incur significant additional costs if you lose on appeal as well.
Getting help with a civil litigation matter
Although there are many excellent solicitors who regularly handle civil litigation matters, it can nevertheless be challenging for the layperson to find a solicitor who has the right expertise and who is conveniently located. You can research websites for some of the law firms in your area, and it might also be useful for you to search our directory.
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