What administrative work is necessary in a court or tribunal case?


Scanner/printer shown above is a Brother MFCJ5625DW     

You can engage a barrister to represent you in court or tribunal hearings, and to draft the legal documents needed for a case but in litigation there are some things you have to do.

Loading and Organising Documents

Many of the pre-trial steps involve producing either lists of documentary evidence or full document "bundles". Once you have loaded every relevant document into a document storage system such as Caselines and typed in the title and date of every document, you can then produce lists of documents and document bundles as required automatically.

The Disclosure of Documents stage

The court/tribunal will normally order each party, at an early stage, to disclose to the other party what relevant documents it has, and normally a party will be prohibited from using, at trial, any document it fails to disclose, although if a party accidentally leaves a document off its disclosure list but discloses it shortly afterwards (e.g. because a document has been misfiled and turns up later) the court/tribunal will normally exercise its discretion and allow it to be relied on at trial. Sometimes when, shortly before the trial, a bundle of documents for the trial is being prepared ("trial bundle") a party seeks to include in it a document but the other party objects on the grounds that it was never disclosed. You need to ensure both that all relevant documents are disclosed and that you have, ready to hand, the means of proving what you disclosed and when and what the other party disclosed and when, in case a dispute arises about this.

Going through all the documents you have and working out which are probative of disputed issues can be quite time-consuming. Barristers do not generally expect to be asked whether a document is relevant (this is because barristers maintain their skills in advocacy, drafting and giving legal advice by concentrating on those areas and if they gave extensive time-consuming advice at the disclosure of documents stage, particularly where significant numbers of documents are involved, that would detract from the specialised nature of a barrister's practice) so this means that you have to have the time and patience, and ability to understand the rules, to go through each document working out whether it is probative (and therefore should be disclosed) or not. In practice this will sometimes mean erring on the side of safety and disclosing any non-privileged document whose probative value you are in any doubt about (so as to ensure that you comply with your legal duty) and only asking the barrister for advice about particular documents if you are in any doubt as to whether the document is privileged or not. The rules governing what documents are privileged are relatively straightforward but occasionally advice might need to be sought in borderline cases. If you do not feel able to carry out the disclosure process yourself without assistance then you will need to engage a solicitor to carry out disclosure. Some information pages on disclosure which I provide to my clients can be found here. Please note that these pages are designed only to be used by my clients in conjunction with specific advice about their individual case. They should not be relied on by anyone else and the link is provided only so that you can get a general feel of what may be involved at the disclosure of documents stage to help you decide whether you need to engage a solicitor to deal with disclosure of documents for you or whether you are confident that you can do it yourself. 

Printing and scanning

Although PDFs are increasingly used in legal proceedings, there will always be some documents which need to be printed and sent in paper form, normally because the court/tribunal rules require it. This means that you need to be able to print documents, and to scan in documents which you receive in paper form. Your printer/scanner needs to be capable of printing and scanning in colour because there will invariably be some colour documents such as photographs or colour-coded plans. You can use an ordinary reprographics shop (such as Office Outlet or Rymans) or a specialist legal reprographics shop (such as Legastat) but even if you use a reprographics shop for bulk printing/scanning you will almost certainly need you own printer/scanner at least for low volume use - you do not want to have to go to a reprographics shop just to print a single urgent letter. The cost of "all in one" printer/scanners is coming down all the time and you can buy a combined scanner and printer, which can scan and print double-sided, A4 and A3, for less than £100. When buying a scanner make sure that the scanner has a double-sided automatic document feed (ADF) as you may find that many of the documents you need to scan in are printed on both sides. 

Filing formal Documents

In centuries gone by anybody starting a court case, or responding to a court case, had to first attend a short hearing before a judge. At that hearing they would be represented by a barrister to "plead" their case in legal terms - i.e. formally state the legal points that their claim, or defence, was based on, but they themselves had to be physically present as well (albeit in some cases they could send someone with power of attorney in their place) to confirm that they were taking the formal step of starting a claim, or admitting or defending a claim.

These days the formal pre-trial steps in a tribunal or court case, such as initial "pleadings" and declaring the relevant documents which you have, are taken by "filing" formal signed documents at the court/tribunal office rather than by making a physical appearance before a judge, though some of the modern terminology still reflects the former system in that, for example, when a defendant, on receipt of a Claim Form, files an Acknowledgement of Service form, it is still sometimes called "entering an appearance". Because of the importance of the formal steps in litigation (such as starting the case, filing a Defence, or making an Application for an interim court order after the case has started) these steps are required to be done by you personally and there are certain rules about how they have to be done - for example whether you have to use a court/tribunal computer system or whether you can file documents in paper form or send them to the court/tribunal office by email.

The rules about how formal documents have to be filed are designed to reduce the scope for disputes about whether and when a document was filed. A document may have to be filed by a deadline so certainty is important. You can ask your barrister to advise you about the rules which apply and, of course, to draft the formal documents themselves, but you have to do the formal act of delivering (or the online equivalent where applicable) yourself. In the case of delivering formal documents in paper form (where permitted) this does not mean that you have to literally put a formal document through a letterbox with your own hands - you can use the post, for example - but whatever means of delivery you use, you have to initiate it and take responsibility for it.


Visiting the Court/Tribunal Office

In theory you don't have to visit the court or tribunal office to start a claim because you can use post (where permitted) or electronic systems/communication (where permitted) but, even so, you may well still need to visit the court/tribunal office later on in the process to deliver hardcopy files of documents ("bundles") for a specific hearing. In theory this can be done by post but in practice often the timescales and logistics mean that hand delivery to the court/tribunal office is needed. Also in some courts you have to attend the listing officer in person, with your diary, in order to arrange a date for the trial. 


Service of formal Documents

The rules of the particular court/tribunal may require that any document you send to the other party by post has to be sent by First Class post and, of course, there are rules about what is a valid address to send it to, and about how soon you have to send a document, if using post, in order for it to be counted as arriving by any deadline set by the rules. 

The rules about how formal documents have to be served are designed to reduce the scope for disputes about whether and when a document was served. A party receiving a document may be required to take certain steps within a fixed number of days so certainty about service of documents is important.

Because of the importance of these formal pre-trial steps, the other party, and the court/tribunal office, has to send formal documents (and, indeed, all communications) to you personally - not to a barrister you engage to advise you - so your own address is given in the formal documents you send to the court/tribunal and to the other side (or is entered by you after logging in to the court/tribunal system) and you, of course, need to check your post/emails and scan in/forward by email to your barrister, anything received which you require advice on. You will need to check you post and your email every business day. If you will be going away for a period at any time during the litigation (litigation can take up to a year or even more in some cases) you need to make arrangements for someone you trust to check your post and scan in and email to you, wherever you may be, any post relating to the litigation. In many courts/tribunals it is possible for you to give an email address as your address for service but you still have to give a physical postal address as well and both the court/tribunal and other parties are entitled to serve documents on you by sending them to your physical address - they do not have to use your email address. So you do need to ensure that your post is checked at least every other day, and preferably every business day, if you go away. If you cannot do this then you will need to engage a solicitor who will handle all communications for you.      


Delivering hearing bundles to the court/tribunal office

A Bundle is an organised collection of documents in a ring binder or lever arch file (or perhaps several lever arch files if it contains a lot of documents). Every page has a page number and the judge and each party at the hearing have identical copies of the Bundle. A Bundle will have an index at the front, listing every document in the Bundle with its page number.

If you engage a barrister to represent you at a hearing then, depending on the scope of the work the barrister has agreed to do, the barrister may assist you in producing the Bundle in PDF form, but you will need to do the work of printing, assembling and delivering copies of the Bundle to the court/tribunal office, and to the other party, in advance of the hearing.

If you only have a slow printer you could use a high street print shop, such as Office Outlet or Rymans, to print the pages so that you can then assemble the bundles and post them, or hand deliver, or courier if time is short.

If you are too close to the deadline to use the post and your case is in the Royal Courts of Justice in the Strand in central London (or in the nearby Rolls Building or in a tribunal in the vicinity) but you do not live in London and personal delivery or using a courier is not practical, there are shops based near the Royal Courts of Justice who will not only print, but also assemble and deliver bundles to the court/tribunal office. If you use such a service in this way it is important to choose a shop which specialises specifically in producing legal bundles as you will not be able to see and check the hard copy bundle before it is delivered, so you need to be certain that the shop is not just a standard high street print shop but a shop which understands features typically found in legal Bundles such as tabs.


Keeping Track of Deadlines   

Throughout the proceedings you will need to keep track of the deadlines the court/tribunal has set and ensure that they are met. Where meeting a deadline is dependent on the work of others, e.g. a barrister or an expert witness, you need to ensure that the barrister or expert witness is requested, in good time, to do the work, and is provided with all information and documents necessary for them to do so. So, to take a simple example, a Reply to Defence document cannot be drafted by a barrister until the Defence document is available, so if you are the Claimant in receipt of a Defence document you would need to scan in the Defence document, as soon as you receive it from the other side, so that the barrister can see it, agree the barrister's fee and check that the barrister can draft the Reply to Defence document in time for you to then sign it and deliver/post it to the other party for it to arrive by the deadline, and file it at the court office by the deadline.

When you ask a barrister to draft any document, you have to provide the barrister with the raw material which the barrister is to base it on. This means that you will need to type up, as a Word document, a chronological account of everything you can remember which is, or might be, relevant to the dispute. This is called a "proof of evidence". You will need to look for documentary evidence - i.e. ordinary documents on paper, on computer/tablet/phone which shed light on where the truth lies in the matter in dispute. Depending what the case is about this might include letters, emails, contracts, deeds, Land Registry documents, invoices, bank statements, purchase orders, photographs and videos. In order to find relevant documents you may need to extend your search outside your home or office. For example if the case is about disputed land and it is important to know who was using the land 20 years ago and what for, whether land was cultivated as a garden by an adjoining house, and fenced in, for example, and over what period, you would need to contact aerial photograph companies, search for old maps, make enquiries to see if the people living there (or their relatives who may have visited and remembered playing in the garden) can be traced, etc. 

You will need to decide at what stages to ask for advice


Arranging for Expert Witnesses   

If an expert witness (such as a surveyor) is needed, you have to find a suitable expert and agree their fees. You can ask a barrister to draft an instruction letter but you have to sign it and send it to the expert in your own name, and you have to liaise with the expert to ensure that his report is produced in time for you to deliver it to the other parties by any court/tribunal ordered deadline.


Obtaining evidence 

Barristers do not collect evidence and you will need to search for documents, trace witnesses etc. as necessary for the case.


Drawing up plans

In cases concerning land, if a plan needs to be drawn up showing where a piece of land is, or the route taken by a claimed right of way, etc. you would need to draw up the plan. This is usually done by taking a large scale ordnance survey map in PDF form and marking on it, using PDF software, the various features in different colours.

Mediation and other attempts at settlement

Even if court/tribunal proceedings have already started it is not too late for a settlement to be agreed. If the parties can agree on a settlement at any time before (or even during) the trial, the case is essentially halted (although in some cases the court/tribunal may need to make a formal order “by consent”). A settlement can be on any terms which the parties are able to agree on. That might mean agreeing a settlement in which the Claimant gets most (but not all) of what they are seeking, or a settlement which means that the Claimant gets very much less than they are seeking, or the parties might meet roughly in the middle. There are two main ways of attempting to reach a settlement

  • Mediation
  • A formal written offer
A Mediation is a meeting, usually lasting half a day or a day, attended by the parties and their barristers, and conducted by a professional mediator whose fees are split between the parties. You can suggest a mediation to the other side at any time and, if they agree, you can jointly appoint a mediator. 

It is usual for each party to be accompanied to a mediation by their barrister so that the barrister can advise them about making or accepting particular offers during the mediation. Also, if the mediation is successful, the barristers can draft and agree the detailed wording of the formal legal agreement to give effect to the settlement terms which, when signed by both parties, are legally binding. 

A barrister can suggest suitable mediators but barristers do not get involved in making the practical arrangements for the mediation (apart from giving you their unavailability dates so that you can arrange the mediation for a date when your barrister is available) so you have to make the running in corresponding with the other side and with the mediator about dates and the practical arrangements for the mediation.  

Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.
        

This page was lasted updated in July 2017          Disclaimer