 IntroductionThe culmination of the process of litigation is the trial which may last a day or several days. At the trial witnesses give evidence on oath, each side’s barrister cross-examines the other side’s witnesses, the barristers make submissions (arguments) to the judge, and the judge then decides which side wins. There may be a delay of up to a year (or more in complex cases) before a case comes to trial. This is partly because there is a backlog of cases waiting for trial but it is also because the litigation process starts long before the trial and there are several distinct stages within the process at which the parties exchange information. What follows is a description of the litigation process for civil cases subject to the Civil Procedure Rules. Criminal and family cases are different. Please note that this is general information, not all steps are applicable in all cases and it is not intended to be, and should not be taken to be, specific advice about your case. Please see the Disclaimer.
An overview of the litigation process
The litigation process starts long before the trial and there are several distinct stages within the process at which the parties exchange information. This means that the whole process of litigation, starting with the claimant issuing a Claim Form, and ending with the trial, can take up to a year, or more in complex cases. It can be frustrating to have to wait so long for the trial but the multi-stage process is designed ultimately to save both side’s legal costs by progressively narrowing the issues so that the trial does not need to be as long as would otherwise be the case. Although there can be some variations, the usual stages of the litigation process in the courts (tribunals may be slightly different) are as follows:
At the Statements of Case stage the person bringing the claim (the “claimant”) sets out in a document known as Particulars of Claim (drafted by their barrister), accompanying the Claim Form, the basic facts that they allege and what they claim is the legal consequence of those alleged basic facts. In response the person claimed against (the “defendant”) sets out in a document known as a Defence (drafted by their barrister) what their response is, which alleged facts they admit to be true, which they deny, other relevant facts they rely on, and what they claim is the legal consequence of the facts as they believe them to be. There can be other Statements of Case, for example a Reply or a Request for Further Information, but by the end of the process of exchanging Statements of Case, the issues in dispute should have been narrowed. For example, a business which has been sold an unsuitable telephone system might bring a claim against the supplier. The business might say that the salesman told them that it would be suitable for their business and would support 2000 extensions and 100 external lines, but that in fact it can only support 1000 extensions. In its Defence the supplier might admit everything alleged, in which case the only issue may be the appropriate compensation to be awarded. Or the Defence might admit that the telephone system can only support 1000 extensions but deny that the salesman ever claimed otherwise. Or the Defence might admit that the salesman claimed that the system would support 2000 extension, and go on to say that the system can indeed support that number and that the business’s problems are due to faulty installation or the system not being used correctly. Or the Defence might deny that the salesman ever claimed that the system would support 2000 extensions, but go on to say that, nonetheless, the system can in fact support 2000 extensions if used correctly.
Once what is admitted and what is denied is established, the remainder of the litigation process concentrates only on what is in dispute. For example, if there is no dispute over what the salesman said, there is no need for any witness evidence or documentary evidence on that issue, and evidence is limited to the issue of whether the telephone system can in fact support 2000 extensions or not. The scope of the subsequent stages therefore depends on the Statements of Case. The documents to be disclosed by each party to the other at the Disclosure and Inspection of Documents stage are only those documents which are relevant to matters still in dispute, and the only witness statements needed at the Exchange of Witness Statements stage will be statements from witnesses who have knowledge of matters still in dispute.
I should pause to mention that the Pre-Action Protocol stage precedes all the above stages. Its purpose is to allow the strength of the client’s case to be assessed before legal proceedings are actually commenced with the issue of a Claim Form. Once proceedings are commenced they cannot usually be abandoned by the claimant without the claimant having to pay the defendant’s legal costs, so it is important for the claimant to have an assessment of the likely chances of success in the litigation, before proceedings are actually started. Exactly what action is taken during the Pre-Action Protocol stage depends partly on what type of case it is (in certain cases – e.g. in cases concerning disputes over construction work – there are certain minimum requirements which must be carried through at this stage) and partly on the barrister’s assessment of what steps it is reasonable to take, before proceedings are issued, in order to better assess the strength of the client’s case and the other side’s case. There may be crucial documents which only the other side has (such as a letter sent by the client some time ago during contractual negotiations which the client has not kept a copy of) which need to be obtained during the Pre-Action protocol stage. In cases where it can be predicted that crucial facts are likely to be disputed by the defendant, for example an agreement by word of mouth entered into years ago for which there is no contemporary documentary confirmation, it may be important for witnesses who were present and heard the conversation to be interviewed, and witness statements taken, at the Pre-Action Protocol stage. This will incur extra cost because all the evidence that a witness can give will be being taken before the Statements of Case stage, and doubtless when the Statements of Case stage is reached it will become apparent that some aspects are not in dispute so that some parts of the witness’s evidence are not needed after all, so it is a matter of judgement as to how much of the work which would ordinarily be done later, after the issues have narrowed, should be brought forward and done before proceedings are issued, in order to better assess the prospects of success.
Returning to the Disclosure/Inspection and Exchange of Witness Statements stages, these stages also provide an opportunity to identify and narrow possible disputes over evidence. Normally there is no dispute that letters and emails were sent (there may be a dispute about whether what is said in the letters and emails is true, but normally there is no dispute that the letter or email is authentic – i.e. that it was in fact written on the date it bears and sent then) but occasionally there may be a dispute about one or two specific letters/emails. Where there is a dispute about the authenticity of a particular letter/email, this will become apparent at or before the Exchange of Witness Statements stage because if a party disputes the authenticity of disclosed documents that party must serve a Notice (under CPR 32.19) before the deadline for Exchange of Witness Statements (if no Notice is served the party is deemed to admit the authenticity of all documents disclosed by the other party). Knowing in advance of the trial which documents are disputed allows the party to take steps to prove the authenticity of disputed documents at trial (for example by arranging for the person who wrote the letter to attend the trial and confirm the genuineness of the document, or in some other recognised way) and saves time by allowing the bulk of undisputed documents to be read by the court without time-consuming formal proof of their genuineness being needed.
At the Exchange of Witness Statements stage the parties also have to alert each other if they intend to rely on what is called “hearsay evidence”, by serving a Notice under CPR 33.2. An example of hearsay evidence would a letter complaining about defective goods. In a case about defective goods the fact that the goods were defective would normally be proved by a witness statement of the person who received and tried to use them (possibly supplemented by the report of an expert who examined the goods) and the letter complaining about the goods is used in evidence simply to prove that a complaint was made. However if everyone who knew the goods were defective has died or is untraceable (or has forgotten) and the goods are no longer available to be inspected and tested, then the only evidence that the goods were defective might be the complaint letter. In this case the party is forced to rely on the complaint letter not just to show that a complaint was made but also to show that the complaint was true – i.e. that the goods were defective. Using the letter in this way is called “hearsay” and is only allowed if a Notice is served at the Exchange of Witness Statements stage. The reason for rule requiring notice to be given is that if the letter is being used as evidence of the truth of what the letter writer said, but the letter writer is not being called as a witness and cannot therefore be cross examined, the other party should at least be given notice so that they can investigate and try themselves to trace the letter writer if they wish to do so.
Sometimes it happens that a witness gives a signed witness statement but by the time witness statements are exchanged it is clear that the witness will not be able to attend trial and give evidence (for example because they have died or gone overseas). In this case the witness statement can still be used but it counts as “hearsay” and a Notice has to be served at the same time saying that the witness will not be called to give evidence and giving the reason why.
When photographs have been taken by someone who is giving his evidence as a witness, the photographs will normally be attached to (“exhibited” in) the witness statement and referred to in the witness statement explaining where and when they were taken. However often with old photographs the person who took them is unavailable or unknown. In this case the photograph can still be used because it speaks for itself even if the person who took it cannot give evidence (what lawyers call “real evidence” – the evidence of things themselves as opposed to the evidence of human beings). However before it can be used a Notice has to be served under CPR 33.6 at or before the deadline for Exchange of Witness Statements. The reason for this rule is to give the other party an opportunity to check the photo. The rule also applies to plans and models. However there is no need to give notice for photographs, plans etc. which are part of an Expert Report for which the court has given permission.
Following Exchange of Witness Statements, and after any Expert Report has been commissioned (e.g. in the example given above of a telephone system, a report by an electronic engineer on whether the telephone can support 2000 extensions) the next stage is the Trial before a judge. This may take a day or a series of days depending on how many witnesses there are and the extent of the issues in dispute. Each side’s barrister cross-examines the other side’s witnesses to test their evidence. Both barristers then have the opportunity to address the judge and argue their client’s case. The judge will then deliver his judgment, either after a short adjournment or, more usually, at a later date.
The judgment will state who has won and who has lost and how much money the losing party must pay to the winning party (or who owns the disputed land, or whether a restrictive covenant is enforceable etc., depending what the case is about).
Immediately after the judge gives his judgment, the barristers have an opportunity to present arguments to the judge regarding the principle of costs. Normally the losing party is ordered to pay the costs of the winning party but sometimes there is scope for arguing for a different result[1]. Having made an order on the principle of who should pay whose costs, the judge then has to deal with how the precise amount of costs, which usually the loser has to pay, will be calculated, because not all costs are allowed or fully allowed[2]. The judge may determine the actual amount there and then and order e.g. “Defendant shall pay the Claimant’s costs summarily assessed at £49,500” or alternatively the judge may order detailed assessment e.g. “Defendant shall pay the Claimant’s costs to be subject to detailed assessment if not agreed”.
If detailed assessment is ordered then over the course of the next few months the solicitor acting for the party whose costs are to be paid will send to the other party’s solicitor a bill of costs, and there will then be negotiation between the solicitors over the items in the bill of costs and whether they should be allowed. Usually the parties’ solicitors are able to reach agreement over which items are to be allowed but, if not, then ultimately the matter will be ruled on by a Costs Judge. Timescales
Before the reforms in civil procedure in 1999 it was not at all uncommon for cases in the courts to take many years. The main reason for this was that the pace of litigation was entirely within the control of the parties’ solicitors. The various stages (Statements of Case, Disclosure of Documents, Exchange of Witness statements, etc.) proceeded at a very leisurely pace and only when that process had been completed was an application made to the court for the matter to be listed for trial, and there might then be a delay of a year before the trial actually took place.
Avoiding this type of delay was one of the main objectives of the 1999 reforms and under the new Civil Procedure Rules, the court takes a much more active role in setting deadlines, similar to the role which has long been the case with tribunals. A typical timescale is shown in the box below. The dates shown are not exact but it can be seen that there are a number of deadlines, with often only 2 weeks between one deadline and the next. This means that the time from Claim Form to trial is much shorter than under the old system but it also means that there are quite tight deadlines which the court can enforce with “sanctions”. The sanctions available to the court include ordering a party not meeting a deadline to pay the legal costs incurred by the other party in going to court to get an order that they do so. In addition the court might make an order debarring a party in default from relying on some part of its case - for example if the statement of a witness is not exchanged on time, the court may refuse to hear that witness, and if the witness is important that might mean that the party deprived of that witness is less likely to win. If a required Notice is not served in time the court may not allow the party to use a crucial photograph or plan. In cases of persistent failure to meet deadlines by a claimant, the court might strike out the whole claim – i.e. declare, without a trial, that the claimant has effectively lost and must pay the defendant’s costs. In the case of persistent failure by a defendant to meet deadlines, the court could declare that the claimant has won the case by default, without there being a trial.
This page was lasted updated in April 2011. Disclaimer [1] for example if the winner has done less well than an offer previously made by the loser, or if the winner has won overall but not on every issue and the issues the overall winner lost on occupied most of the time. If the case is on the Small Claims track in the County Court then only very limited costs are normally awarded. The circumstances in which tribunals (as distinct from courts) will order costs, varies.
[2] In deciding what costs should be allowed, the court will look at the total costs and, particularly if that is large, also at individual items. Items which are essential to the litigation such as drafting Statements of Case, witness statements, and the costs of counsel appearing at court are normally allowed in full, but conferences with the client and other attendances such as emails between lawyer and client may be subject to closer scrutiny. |