Litigants who are conducting their own case in court, without the benefit of legal advice, not uncommonly write long letters to the court office about their case and are disappointed not to receive any reply. To explain why no reply is received it is necessary to step back and first consider what a court of law is and how it operates.
A court decides legal disputes between two parties. Its decision is compulsory and can be enforced, so it is very important that the decision which the court reaches is not only fair, but is seen to be fair by the parties and by the public. The civil court system is an “adversarial” system rather than an “inquisitorial” system – i.e. the court does not itself go searching for evidence; it is for each party to bring to the court the evidence which each party has or can obtain, in an orderly way, in accordance with the Civil Procedure Rules.
To try to avoid such potential unfairness, the Civil Procedure Rules set out a number of steps, before the trial, at which the parties provide each other with information, in increasing levels of detail, about what they will be arguing at the trial. The exact number of steps can vary with different cases, and is decided for each case by a judge giving “directions” at an early stage in the process, but typically the process starts with a party issuing a Claim Form and Particulars of Claim. The Particulars of Claim give a concise statement of the key facts which the Claimant alleges. There are specific rules that certain legal points have to be stated, if they are relied on, in the Particulars of Claim, but, beyond that, it is difficult to describe in the abstract how detailed the Particulars of Claim need to be (though lawyers and judges instinctively recognise a Particulars of Claim which is insufficiently detailed or too detailed). However, to give some idea, it is generally true to say that Particulars of Claim set out what the Claimant alleges to be the facts but not how the Claimant intends to prove it. For example 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 Particulars of Claim 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 his own recollection and may intend to prove what he alleges simply by his own sworn evidence in the witness box at the trial. Or the Claimant may 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 Particulars of Claim which will just contain the basic allegation of what the salesman said, where and when. In response to the Particulars of Claim, the Defendant will file a document known as a Defence. This will say, again fairly concisely, which of the Claimant’s allegations are admitted to be true and which are denied. For example, the Defence might deny that the salesman had said what he is alleged to have said. Or the Defence may admit 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. The Defence may also make factual allegations relevant to the case. For example, the Defence may 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.
Once the Particulars of Claim and Defence have been filed, there may be further “statements of case” such as a Reply to Defence etc. but once the set of “statements of case” is complete, the next stage is usually the Disclosure of Documents stage at which each party must search for relevant documents which it has and send a list (and copies as requested) to the other party. Only documents which are relevant to an issue in dispute have to be listed so you can see that the Statement of Case stage, by identifying what is disputed and what is not, saves time at the Disclosure of Documents stage.
Then comes the Exchange of Witness Statements stage, at which each party sends the other party detailed statements of what its witnesses are going to say at trial. Again, the fact that the disputed issues have been identified at the Statements of Case stage, means that there may need to be fewer witnesses. For example, if there is no dispute about what the salesman said, a witness who was with the Claimant at the time and heard what the salesman said, may not be needed at trial. And even if that witness is still needed at trial, because he is also a witness to other facts which are disputed, his witness statement will be shorter because it need not cover what he heard the salesman say as that, at least, is not disputed.
You can see that the steps before trial, save time at the trial, because the length of witness statements, potentially the number of witnesses, and the number of documents, which the court needs to consider, and each side’s barristers need to ask questions about, are limited. The process also helps to ensure fairness by ensuring that neither side is taken by surprise by the other side alleging something, for the first time, at trial.
Many months may elapse between the Claim Form being issued, and the eventual trial, as the various steps have to be completed by the parties according to the timetable laid down by the judge’s “directions”. Generally the court leaves it to the parties to carry out the various steps and the court will not know that any party has failed to comply on time, unless there is an Application to the court.
Most Applications are about such procedural matters but it is possible to make an Application for Summary Judgment. This is more than merely procedural because, if successful, it will provide a short-cut to victory in the case. If you make an Application for Summary Judgment it means that you think that it is so obvious that you are bound to win at trial that the other side has no real prospect of succeeding so you should be declared the winner without there even being a trial. Needless to say it is not easy to succeed in an Application for Summary Judgment because you have to show, not merely that you are very likely to win if there were a trial, but that you are virtually certain to win. If the court hearing the Summary Judgment Application is not persuaded that you would be bound to win at trial, then the Summary Judgment Application will fail and you will be ordered to pay the other side’s costs of the Summary Judgment Application. You will not get those costs back even if you do eventually win at trial.
Sometimes an Application is made for an "interim remedy" such as an interim injunction. For example, if the dispute is about whether or not restrictive covenants allow a building to be constructed, it might make sense to ask the court to make a temporary order halting construction work until the trial has taken place. Otherwise, by the time the matter gets to trial, there may be a fait accompli. Whether it is wise to make an Application for an interim remedy requires careful thought and legal advice because there is not only the risk of losing the Application and being ordered to pay the other side's costs of the application. There is also the risk that you might win the Application but lose at the eventual trial with the likely result that not only will you have to pay the other side's costs but you might also be ordered to pay the other side compensation for the delay to the building project caused by the interim injunction.
If you write a letter (or email) to the court, out of the blue, going over the details of your case and, for example, arguing that your case is stronger than your opponent’s case, there is generally nothing the court can properly do with your letter. It would not be right for it to be read by the judge who will preside at the trial because the judge must be unbiased and make their decision on only the documents in the agreed trial bundle of documents produced for the trial and on the witnesses heard at trial (and in any event which judge will preside over the trial has probably not yet been decided). Another judge could read it to see whether it appears you are intending to make an application – and this is sometimes done – but generally that is not very satisfactory because if you intended to make an application, you should have done so in an Application Notice giving the required information in a structured way. It may be unfair to the other party for a letter to be treated as an Application if is not clearly set out in the way an Application Notice would be. It may actually be unfair to you to treat your letter as an Application because, when writing it, you may not have realised the costs risk of making an unsuccessful Application and may not have intended your letter to be treated as an Application.
So what usually happens if you write a letter to the court about the rights and wrongs of your case is simply nothing. The letter may be filed somewhere by the court staff (for example in a day file to be kept for a limited period of time in case of query) but will not normally be acted on in any way.
But if you find yourself thinking about writing to the court, completely out of the blue, about the substance of the case itself, then you probably need to stop and think: why am I doing this? If the answer to that question is that you hope to persuade the court that you have such a good case that it should not be necessary to have a trial, then what you need to consider, instead of a general letter, is an Application for Summary Judgment on the correct Application Notice form. Of course it is advisable to seek legal advice before making an Application for Summary Judgment (because of the costs risk if the Application is unsuccessful), but that it the correct way to make such an application,
If the answer to the why am I doing this? question is that you want to complain that the other party has not (in your view) properly complied with the court’s directions then generally it is best to seek legal advice about whether an Application Notice or some other action is appropriate.
The above explanation of the law 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 law would say about your own situation. So please do not rely on the above but contact me for advice
This page was lasted updated in October 2016 Disclaimer