An Overview of the Civil Legal Process

Introduction

If there is a civil legal dispute between two parties, it will normally be resolved at a hearing before a judge which may last a day or several days. At the final hearing (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 based both on the evidence from the witnesses and documentary evidence (e.g. photographs, letters, emails from the past which shed light on where the truth lies) and the judge then decides which side wins.

There may be a delay of up to a year or more before a case comes to the point of the final hearing. This is partly because there is a backlog of cases but it is also because the litigation process starts long before the final hearing and there are several distinct stages within the process before the final hearing. To understand why these stages are necessary, consider what would happen if there were simply a final hearing with no steps beforehand. Imagine that someone who had a dispute could simply send a short claim form to the tribunal, giving the name and address of the party they were in dispute with and suppose that the tribunal then simply fixed a date for a final hearing. On the day of the final hearing, the Claimant or Applicant (i.e. the person making the claim)  would bring their witnesses, together with copies of all their relevant documents, and come prepared to argue their case. The Defendant or Respondent (i.e. the person against whom the claim is made) would attend but they could well be at a great disadvantage because they would not know in advance what the Claimant/Applicant was going to say. The Defendant/Respondent might be able to guess what the dispute is about (as people normally make their complaint direct to the other party first and only go to a tribunal if they do not get satisfaction) but they might not be sure. The Claimant or Applicant might produce documents that the Defendant/Respondent has never seen before and make detailed allegations which the Defendant/Respondent is not expecting and may dispute. The Defendant/Respondent may end up thinking “if only I had known that that would be alleged I could have brought along another witness or looked for another document.” So a process such as this (i.e. a final hearing without any preparatory steps) would be likely to be unfair to the Defendant/Respondent. It might be unfair to the Claimant/Applicant as well. They might put forward what seems to be a good point only to have the Defendant/Respondent produce, for the first time, documents and witnesses who can answer the point. The Claimant/Applicant may think that if only they had had advance notice of what the Defendant’s/Respondent's defence to that point was going to be, they could have prepared better by investigating to see if it seemed likely. So you can see that our imaginary tribunal system (with a final hearing but no preparatory steps) would be unfair to at least one party and possibly unfair to both. 

To try to avoid such potential unfairness, there are a number of steps, before the final hearing, at which the parties are required to provide each other with information and/or documents, in increasing levels of detail, about what they will be arguing at the final hearing and what evidence they intend to use to try to prove their case. The exact number of steps can vary with different cases, and is confirmed for each case by a judge giving “directions” at an early stage in the process. The process, which is described below, usually starts with the Claimant or Applicant sending to the office of the civil court or other civil tribunal a document which sets out some details of the nature of the claim they are making against the other party. Or in some cases a party first makes an application to a body such as H.M. Land Registry and it may be that the Land Registry refers the case to the tribunal, providing a summary of the disputed case, and it is the tribunal which then writes to the parties requiring them to then send in the initial formal document. The formal documents sent by the parties, initially and in reply, are called  statements of case.     

Note: the procedure, which is described below, is the traditional procedure which ends with a final hearing (trial) and typically takes about a year from start to finish. Sometimes a simplified procedure is possible - for example where there is no dispute about the facts and the dispute is just about the correct interpretation of a legal document such as a contract or conveyance or about whether the undisputed facts meet a certain legal criterion, or about whether a public official's decision is within their statutory powers. Also sometimes as well as the long procedure - which can take a year or more - there is also a fast interim procedure, such as an application for an interim injunction, to deal with matters temporarily while waiting for the full procedure to reach its conclusion.        

The Statements of Case stage

The Claimant's or Applicant's statement of case gives a concise statement of the key facts which the Claimant or Applicant alleges. There may be specific rules that certain legal points have to be stated, if they are relied on, but, beyond that, it is difficult to describe in the abstract how detailed a statement of case needs to be though barristers and judges instinctively recognise statements of case which are insufficiently detailed or too detailed. To give the general idea, it is sometimes said that statements of case set out what the Claimant or Applicant alleges to be the facts but not generally how the Claimant or Applicant intends to prove it, though this distinction is not always clear-cut in practice. 

Here is an example to give the general idea. If the Claimant alleges that the Defendant’s salesman persuaded the Claimant to buy a particular computer by saying that it had certain capabilities, which it turned out not to have, then the Claimant's statement of case will set out what the Defendant’s salesman is alleged to have said, where and when, but will not say how the Claimant intends to prove this. The Claimant may be relying simply on their own recollection and may intend to prove what they allege simply by their own evidence to be provided in a witness statement and confirmed on oath at the final hearing. Or the Claimant may, in addition, have made a note, at the time, of what the salesman said, or may even have made an audio recording at the time. There may be other circumstantial evidence which tends to support what the Claimant alleges, but generally none of this will be in the statement of case which will just contain the basic allegation of what the salesman said, where and when. In response to the Claimant's statement of case, the Defendant will say in their statement of case, again fairly concisely, which of the Claimant’s allegations are admitted to be true and which are denied. For example, it may be denied that the salesman had said what he is alleged to have said. Or it may be admitted that the salesman made the statements alleged but go on to say that the computer does have the capabilities which the salesman said it did. Other factual allegations relevant to the case may also be made. For example, the Defendant may, in their statement of case, allege that the Claimant had interrupted the salesman by saying “there is no need to tell me that, I am an expert on computers, I know all about this model, and know it is what I need” – i.e. that whether or not what the salesman said about the computer was accurate, the Claimant’s decision to buy was not influenced by what the salesman said.

The purpose of the statements of case 

The statements of case set the overall parameters of the dispute. They may establish, for example, that the dispute is about specific goods sold by a shop at a particular time and not, for example, about other goods sold earlier on, and not about something completely different such as whether the shop building has been built in breach of a restrictive covenant or encroaching on someone else's land.

Why getting the statement of case right is important

Getting a statement of case right is very important. The statements of case will be used to limit what work needs to be done in subsequent stages, leading up to the final hearing. To save time and money, both for the parties and for the tribunal, the tribunal will accept any point which the statements of case show is not in dispute as being true, and subsequent steps, and the final hearing at the end of the process, will only be concerned with those issues which are in dispute between the parties. So, for example, if both parties agree what price was payable for goods, documents relating to the question of the price agreed do not need to be disclosed at the Disclosure of Documents stage (providing they are not also relevant to some other issue which is in dispute) and witness statements (at the Exchange of Witness Statements stage) do not need to cover what was discussed about price either (except perhaps incidentally to set out the sequence of events), and the judge does not have to decide, at the final hearing, what price was agreed because it is not a matter in dispute. 

If a party misses something out of its statement of case which ought to be there, generally they will not be allowed to argue it at the final hearing as it would be unfair to the other side to allow them to do so. So if, for example, the Claimant's statement of case only alleges that the salesman stated that the computer had features A and B and the statement of case does not mention some further entirely different feature - C, the Claimant will not be allowed to introduce evidence that the salesman also stated that the computer would have feature C which it lacks. Or, at least, if evidence regarding feature C is incidentally given at the final hearing, the Claimant will not be allowed to rely on it to argue that they should win in the case.

If the Claimant thinks that it is essential that they should be allowed to rely on the salesman's statement about feature C (and the the lack of feature C in the computer) then they will need to ask for permission from the tribunal to amend their statement of case. Whether the tribunal will give permission may depend party on how long after the statements of case stage the party applies for permission. If not much has happened since, permission may be more likely to be granted, but if permission is sought after further stages have been completed, and that may mean that stages have to be partially repeated, then permission may be refused or, at the very least, permission may be granted only on condition that, whatever the eventual outcome of the case, the party applying for permission should pay all the extra costs incurred by the other side in having to amend its statement of case in reply and partially repeat stages already carried out. 

If a statement of case needs to be amended, but permission is refused, the consequence can be that the party loses (or partially loses) at at the final hearing for that technical reason when they could have won if the statement of case had been better drafted at the outset.

Because of the crucial importance of getting statements of case right, it is important to get them drafted by a barrister, and equally important to ensure that the barrister who is asked to draft them is provided with all relevant information which the party has. This will include providing the barrister with copies of relevant documentary evidence such as photographs, letters, and emails from the past.

Disclosure of Documents stage

The next stage is usually the main Disclosure of Documents stage. The rules of the tribunal may have already required certain key documents to be provided by each party along with its statement of case but at the Disclosure of Documents stage each party must disclose all evidential documents it proposes to rely on at the final hearing. The rules of the tribunal and/or specific directions given by the judge may also require each party to provide all other relevant documents as well in case the other side may wish to rely on them.

Exchange of Witness Statements stage

At the Exchange of Witness Statements stage, each party exchanges with the other, detailed witness statements containing what its witnesses remember about relevant events. The fact that the disputed issues have been identified at the Statements of Case stage, means that witness statements may not need to be as long as they otherwise would have been and may mean that some potential witnesses are not needed at all. For example, if there is no dispute about what a salesman said, a witness who was with the Claimant at the time and heard what the salesman said, may not be needed at the final hearing. And even if that witness is still needed, because they are also a witness to other facts which are disputed, their witness statement will be shorter because it need not cover what they heard the salesman say if that, at least, is not disputed.

Expert Reports stage

In some cases a report from an "expert" such as a medical consultant, engineer, IT consultant or surveyor, is needed. For example, in a dispute between a builder and their customer over allegedly poor quality work, or work not completed, it is normally necessary to have a report from an expert surveyor describing the poor quality work and estimating the cost of remedial works. The report of an expert is needed because although a non-expert can see something is not as it should be, the opinion of a relevant expert is needed to address such questions as what the cause of a water leak is, for example, and what work is necessary to correct it. If either, or both, parties wish to commission an expert report to be used at the final hearing, the permission of the tribunal is normally needed.

Preparation of the eBundle stage

The tribunal will normally have ordered that an eBundle should be produced containing all the documents which will be referred to at the final hearing. In cases where the total number of documents disclosed by both parties is is large, the eBundle does not necessarily contain all of those documents - it only contains those documents which either side require to be included.

You can see that the steps before the final hearing save time at the hearing, because the length of witness statements, potentially the number of witnesses, and the number of documents, which the tribunal needs to consider, and each side’s barristers need to ask questions about, are limited. The steps before the final hearing also help to provide a fair procedure by ensuring that neither side is taken by surprise by the other side alleging something, for the first time, at the final hearing.

Final Hearing

The final hearing 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, referring to the evidence given by witnesses and to documents in the eBundle. The judge will then deliver their judgment, either after a short adjournment or, more usually, in written form at a later date.

The judgment will state who has won and who has lost and, depending what the case is about, 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.

Following judgment there is 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, for example if the winner has done less well than an offer previously made by the loser which the winner did not accept, 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 and costs. In some tribunals, there are restrictions - in some cases severe restrictions - on what kinds of costs are normally awarded. 

Disclaimer

The above explanation of procedure is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the procedure would be in your own situation. So please do not rely on the above but contact me for advice Please note that the above is a general description of a the typical steps in civil case ending with a final hearing (trial), but not all steps are applicable in all cases and sometimes there may be additional steps. Note also that the above is about Civil procedure. Criminal and Family cases use a different procedure. 

This page was lasted updated in February 2024       Disclaimer