0800 689 3206

Life Cycle of a Claim - Article Two - Issuing Proceedings

Each case is different; the steps required, and the litigation timetable followed will depend on the facts and circumstances and the dispute. There are also factors that cannot be predicted in advance, such as actions taken by the Defendant, evidence that emerges during the case, directions or orders given by the court, and the court timetable.

The Overriding Objective

One important principle that underpins litigation in the English courts is the "overriding objective" of enabling the court to deal with cases justly and at proportionate cost. The key factors include:

• Enforcing compliance with the Civil Procedure Rules (CPR) and any court orders;
• Dealing with a case in a way that is proportionate to the:
  • amount of money involved;
  • importance of the case;
  • complexity of the issues; and
  • financial position of each party.
• Saving expense;
• Ensuring that the case is dealt with expeditiously and fairly; and
• Giving effect to the overriding objective in relation to vulnerable parties or witnesses.

These factors must be considered at every stage of the litigation process. When either the CPR or a court order requires you to carry out a particular step in the proceedings, it is very important that you do so, in the manner stipulated, and within the relevant time limit. As part of its case management powers, the court may impose penalties or other sanctions on any party that does not comply with the court rules or orders. These penalties can include costs sanctions or striking out all or part of your evidence or claim.

Statements of Case

Each party to the proceedings must prepare certain documents for the court that contain the details of the case they wish to advance. These documents are knows as 'the statements of case' and they must be filed at court and served on the other party. The documents that comprise the statements of case are listed below in order of their completion:

1. The claim form
2. Particulars of claim
3. Acknowledgment of service
4. Defence
5. Counter Claims and Additional Claims
6. Subsequent statements of Case

Case management

After a Defence has been filed, the court will serve a Notice of Proposed Allocation. Which will propose a track which the court believes your case would be suitable for, there are four tracks:

1. Small Claims Track, claims up to £10K
2. Fast Track, claims up to £25K
3. Intermediate Track, less complex claims up to £100K
4. Multi Track, claims above £100K or complex claims above £25K

Directions Questionnaire

The aim of the Direction's Questionnaire is to provide information to assist the court in allocating the case to the appropriate track and in giving directions for how the case should be conducted. In the Directions Questionnaire, you must set out your proposals in relation to the following:

• Disclosure of documents.
• Scope and extent of disclosure of electronic documents.
• Expert evidence that will be required.
• Witness evidence that will be relied on.
• Directions, that is, the procedural timetable for the matter.
• Possible settlement, or reasons why the defendant does not wish to settle at this stage.
• Each party may also need file a budget of its costs for each stage of the litigation during trial.

The Directions Questionnaire must be filed by the date specified in the court's notice of proposed allocation. Therefore, it is necessary to address each of these issues at an early stage in the proceedings.

Case Management Conference

A Case Management Conference (CMC) is a procedural hearing where the court gives directions for the future conduct of the case until trial, this is a trial timetable, a list of dates that certain tasks will need to be completed by. There may not be a CMC if the parties have agreed directions, or the court issues its own directions and there is no other reason to have a hearing.

Interim Applications

An interim application is made when a party seeks a court order before the trial of the claim. An application may be made for a variety of procedural or tactical reasons, depending on the circumstances (for example, to seek an interim injunction, specific disclosure of documents or an extension of time to complete a procedural step).

Settlement, Alternative Dispute Resolution (ADR) and Part 36 Offers

It is important to keep settlement in mind at all stages of the proceedings. The CPR and the courts encourage settlement of disputes in a number of ways; in particular, by the use of ADR or Part 36 offers to settle the case (see below). Although the court cannot order the parties to enter into ADR, it may impose costs penalties on a party who unreasonably refuses to participate in a form of ADR. If there are any prospects of settling, it is usually better to do so sooner rather than later, to avoid further legal costs.

Part 36 offers

A Part 36 offer is an offer by a claimant or a defendant to settle the claim that complies with the requirements in Part 36 of the CPR. The rules provide for specific costs consequences where there has been a Part 36 offer that was not accepted, and the party to whom the offer was made then fails to achieve a better result at trial.

Part 36 offers can be an important tactical step in litigation, as they put pressure on the other side to settle the case and, to some extent, protect the offeror's position on costs.

The above sets out the process of starting a claim and settlement aspects to consider. The next article will cover the lead up to Trial.

For more information contact Stephen McArdle in our Commercial Litigation department via email or phone on 0333 207 1142. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Commercial Litigation department here

Stress Awareness Month: Building a Thriving Workplace with…

Overview of the changes to flexible working