An Overview of the Civil Legal Process
If there is a civil legal dispute between two parties, it will normally be resolved at a trial before a judge 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 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 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 before the trial itself. To understand why these stages are necessary, consider what would happen if there were simply a trial with no steps beforehand. Imagine that someone who had a dispute could simply send a short claim form to the court, giving the name and address of the party they were in dispute with and suppose that the court then simply fixed a date for a trial and ordered both parties to attend. On the day of the trial, the Claimant (i.e. the person making the claim, sometimes known as the Applicant) would bring their witnesses to court, together with copies of all their relevant documents, and come prepared to argue their case. The Defendant (i.e. the person against whom the claim is made, sometimes known as the Respondent) would attend the trial but they could well be at a great disadvantage because they would not know in advance what the Claimant was going to say. The Defendant 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 court if they do not get satisfaction) but they might not be sure. The Claimant might produce documents that the Defendant has never seen before and make detailed allegations which the Defendant is not expecting and may dispute. The Defendant 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 trial without any preparatory steps) would be likely to be unfair to the Defendant. It might be unfair to the Claimant as well. The Claimant might put forward what seems to be a good point only to have the Defendant produce, for the first time, documents and witnesses who can answer the point. The Claimant may think that if only they had had advance notice of what the Defendant’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 court system (with a trial 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 trial, 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 trial 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 decided for each case by a judge giving “directions” at an early stage in the process. The process starts with the Claimant (or Applicant) sending to the court/tribunal office a form which sets out details of their name and address, the name and address of the person or organisation they are making the claim against, and some details of the nature of the claim they are making. These initial documents, and similar initial documents sent by the Defendant (or Respondent) in reply, are called pleadings or statements of case.
Note: the procedure below is the traditional procedure which ends with a trial which 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. Sometimes when the traditional procedure - which can take a year or more - is used 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 Pleadings Stage
The individual documents from both parties which are collectively known as pleadings (or statements of case) are given different names depending on the court or tribunal concerned.
In a case in the High Court the person or organisation bringing the claim sets out in a document known as Particulars of Claim, 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 or organisation claimed against sets out in a document known as a Defence (or Defence and Counterclaim) what their response is, which alleged facts they admit to be true, which they deny, which they do not positively deny but require to be proved (e.g. alleged facts which are outside their knowledge) 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 further pleadings after that, for example a Reply to Defence, or a Reply to Defence and Defence to Counterclaim (usually known simply as "Reply and Defence to Counterclaim").
In the various tribunals there are documents which serve a similar function. They are often entitled simply "Applicant's Statement of Case" or "Respondent's Statement of Case".
The Claimant's (or Applicant's) pleadings give 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, in the pleadings, but, beyond that, it is difficult to describe in the abstract how detailed the pleadings need to be, though barristers and judges instinctively recognise pleadings which are insufficiently detailed or too detailed. To give the general idea, it is sometimes said that pleadings set out what the Claimant (or Applicant) alleges to be the facts but not how the Claimant (or Applicant) intends to prove it, though this distinction is not always clear-cut in practice. If the fact alleged is that someone pushed someone over, is the question of whether they made contact with the victim's back with their left hand or with their right hand a fact to be pleaded or simply part of the evidence by which the factual allegation of pushing over is to be proved?
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 pleadings 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 trial. 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 pleadings which will just contain the basic allegation of what the salesman said, where and when. In response to the Claimant's pleadings, the Defendant will say in their pleadings, 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 pleadings, 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 pleadings
The pleadings serve two main purposes. First they set the overall parameters of the dispute. They may establish, for example, that the dispute is about specific goods sold by the Defendant at a particular time and not, for example, about other goods sold earlier on, and not, for example about something completely different such as whether the Defendant has built their shop in breach of a restrictive covenant or encroaching on someone else's land.
Secondly the pleadings facilitate "case management". Many courts and tribunals have different "tracks" to which cases cases can be assigned: disputes over small sums of money may be assigned to a simplified procedure whereas cases involving large sums of money, or cases which are about ownership of land, may be assigned to a more thorough (but also more time-consuming) procedure. The pleadings enable the court or tribunal to make such case management decisions at an early stage.
Why getting the pleadings right is important
Getting the pleadings right is extremely important because they will be used to limit what work needs to be done in subsequent stages, leading up to the trial. To save time and money, both for the parties and for the court/tribunal, the court/tribunal will accept any point which the pleadings show is not in dispute as being true, and subsequent steps, and the trial 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 agreed for goods, documents relating only to the question of price agreed do not need (providing they are not also relevant to some other issue which is in dispute) to be included on the disclosure list (at the Disclosure of Documents stage) and witness statements (at the Exchange of Witness Statements stage) do not need to cover that either, and the judge does not have to decide that at the trial because it is not a matter in dispute.
If a party misses something out of its pleadings which ought to be there, generally the court/tribunal's permission will be needed before the pleading can be amended. Whether the court/tribunal will give permission may depend party on how long after the pleadings 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 that may mean that stages have to be partially repeated and permission may be refused or, at the very least, permission may only be granted on condition that the party applying for permission agrees to pay all the extra costs incurred by the other side (in having to amend its pleadings in reply and partially repeat stages already carried out) whatever the outcome of the case.
If a pleading needs to be amended, but permission is refused, the consequence can be that the party loses (or partially loses) at trial for technical reasons when they ought to have won.
Because of the crucial importance of getting pleadings 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.
Initial Disclosure of Documents
In recent decades the increased use of computers and other devices, and the use of email in particular, has greatly increased the number of potentially relevant documents in the average case. Consequently most litigants do not, at the outset, search for, and ask a barrister to consider, every document that may exist but instead they search for, and pay for a barrister to consider, only what appear to be the most significant reasonably accessible documents. Other documents may need to be searched for, in due course, but often the calculation is made that it is better to wait to see the other side's pleadings before conducting a more extensive search for documents and/or paying a further fee for a barrister to consider them, because once the other side's pleadings are available, and it is known what issues are disputed or not disputed, time and money can be saved by searching for, and paying a barrister to consider, only those documents which are relevant to those issues now identified as being in dispute. Of course this involves a calculated risk in that the decision to start proceedings will have been based on a consideration of only some (albeit what are thought to be the most significant) documents, but this is normally considered a reasonable risk to take in order to save costs, and since this is the way it is usually done the rules of most courts and tribunals do not require the parties to provide, at the same time as their pleadings, all documents they will eventually be relying on at trial but only the key documents within the subset of documents which that party's barrister will have considered when drafting the pleadings. The precise extent of this "initial disclosure of documents" depends on the rules of the particular court or tribunal. The rules of some courts/tribunals only specify specific documents to be provided in specific circumstances (e.g. the rules may specify that if a claim is based on a written contract a copy of that written contract is to be disclosed) and those documents are essentially part of the pleadings, whereas the rules of some other courts/tribunals specify that the initial disclosure is to consist of all key documents on which the party has relied, expressly or otherwise, in support of the claims or defences advanced in their pleadings. In the latter case the documents are not really part of the pleadings: they are just being disclosed "early" because it is efficient to do so.
Initial Case Management Stage
The next stage is for a judge to look at the pleadings and give directions about future stages in the case. Depending on the court or tribunal and the nature of the case, the procedural judge (i.e. one of the judges dealing with pre-trial steps, which may or may not be the same judge who eventually holds the trial) might approach this stage in one of the following ways:-
The judge may look at the pleadings and, without inviting any comment from the parties, give directions about the further stages needed in the case, when each stage must be completed by, and how many days need to be allocated for the trial. The parties then receive a written notice with the judge's orders saying that if they think that the directions given are not the most appropriate, they can write to the court/tribunal office proposing revised directions which the judge will consider.
Each party may be sent a notice inviting them to put forward proposed directions (preferably agreed between the parties but, if not, each party can put forward its own proposed directions) and the judge will then decide to hold a short hearing (sometimes called a case management conference or case management discussion) attended by both parties during which the final directions will be given, or else may proceed to give directions in writing without a hearing.
Although the Initial Case Management Stage is mainly concerned with the necessity for, and timetable for, future stages, sometimes there is some "unfinished business" left over from the Pleadings Stage to be dealt with. For example one party might complain that the other party's pleadings are unclear on some point and ask the judge to order the other party to produce a further document making its case clear. Or alternatively, particularly in a a case where it is difficult to draw a clear line between clarifying pleadings and the detail of witness evidence, the judge may, rather than spend too much time on that issue, simply order that a particular witness statement should be provided early (i.e. long before the general deadline for exchange of witness statements) so that that witness statement can act as clarification of pleadings as well as a witness statement.
Disclosure of Documents stage
The next stage is usually the main Disclosure of Documents stage at which each party must disclose all evidential documents it proposes to rely on at trial. The rules of the court/tribunal and/or specific directions given by the judge will also require each party to provide (and perhaps specifically search for) some other documents which the other side may wish to rely on.
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 ("employer") 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 trial, the permission of the court or tribunal is normally needed. Permission is normally sought and given at the Initial Case Management Stage.
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 Pleadings stage, reduces the length of witness statements 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 trial. And even if that witness is still needed, at trial, 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, as that, at least, is not disputed.
Preparation of the Trial Bundle stage
The court/tribunal will normally have ordered that a Trial Bundle is produced containing all the documents which will be referred to at the trial. In cases where the total number of documents on both party's disclosure lists is large, the trial bundle 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 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 steps before trial 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 trial.
The trial 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 documents in the Trial Bundle. The judge will then deliver their 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, 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.
After the judge gives 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, 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. In some tribunals, and for certain types of court case, only very limited costs are normally awarded. 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 will necessarily be allowed or be fully allowed. The judge may determine the actual amount there and then and order e.g. “the Defendant shall pay the Claimant’s costs summarily assessed at £29,500” or alternatively the judge may order detailed assessment e.g. “the 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 party awarded costs will send to the other party a bill of costs, and there will then be negotiation over the items in the bill of costs and whether they should be allowed. Usually the parties 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.
Before the reforms in court civil procedure in 1999 it was not at all uncommon for cases in the courts to take many years. The various stages (Pleadings, 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 or more from that point 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 had long been the case in tribunals. 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 one of the more important witnesses that might mean that the party deprived of that witness is significantly less likely to win. 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.
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 procedural rules would say about 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 trial, but not all steps are applicable in all cases and sometimes there may be additional steps. Note also that Criminal and Family cases use a different procedure.
This page was lasted updated in January 2019 Disclaimer