Civil Court Actions
The Court System
Civil claims in England and Wales are divided between the High Court and the County Court. The High Court deals with major claims often in excess of £50,000, whilst the County Court generally deals with more minor matters, although the County Court can also deal with more valuable claims.
Civil Procedure Rules and the Overriding Objective
The process for taking civil cases to court is governed by the Civil Procedure Rules (CPR), which came into force in 1999. These rules enable the courts to deal with and control cases according to their own timetables, rather than the whims of the parties.
The overriding objective of the CPR is to enable the Courts to deal with cases justly. This may include ensuring the parties are on an equal footing, and dealing with cases in a way which is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party. The CPR ensure that the case is dealt with expeditiously and fairly. Claimants and defendants alike have to comply strictly with the court-imposed discipline.
Active Case Management
The Civil Procedure Rules require courts actively to manage cases, rather than simply hear cases which come before them. The courts need to look at what the parties have to prepare before coming to court, as well as during the court process. The issues at the heart of the litigation will be identified at an early stage, and the court will decide which of them will require full investigation before a trial, as well as deciding how, and the order in which they are to be resolved.
Active case management will include encouraging the parties to use an “Alternative Dispute Resolution” procedure (such as mediation) if the court considers that it is appropriate.
The court will encourage parties to cooperate with each other in the conduct of the proceedings. The court may take any refusal or failure to cooperate into account when deciding about costs.
The court will ensure that both parties follow a timetable, so that you will have an idea very early on how long the case will take from beginning to end.
Pre-action Protocols
Pre-action protocols are procedures which should be followed before starting an action in court. They are in place to encourage parties to try to settle a dispute without the need for court proceedings, thus minimising costs and court time.
Different protocols exist for different types of dispute. However, all the protocols require the exchange of early and full information about the prospective legal claim. The courts expect an open and honest approach to this process.
Pre-action Protocols exist for Construction and Engineering, Personal Injury, Clinical Negligence, Defamation, Professional Negligence, Judicial Review cases, disease and illness claims and having disrepair and possession claims based on rent arrears
Starting an Action
Proceedings are formally started when the claimant (formerly “the Plaintiff”) ‘issues’ a Claim Form in the County Court or High Court. There is a standard claim form for both High Court and County Court actions.
Full details of the claim are set out in the Particulars of Claim, which is often a separate document, accompanying the Claim Form. A claimant’s Statement of Case must now contain a “Statement of Truth” signed by the party himself, or a solicitor on his behalf. If a party does not have an honest belief in the truth of his statement he could be liable to proceedings for contempt of court.
Once the Claim Form has been issued by the Court, it must be served either by the court, or by the claimant, on the defendant. The defendant then has the opportunity to file his defence and/or counterclaim. Once the parties have exchanged these formal documents, the court will order the parties to complete an “Allocation Questionnaire”; this tells the court roughly how the case should be tried. The Court will use the information given on the Allocation Questionnaire to allocate the case to one of three tracks.
The Three Tracks
Every action now proceeds along one of three “tracks”, generally according to the financial value of the claim (although there are other factors).
1. Small Claims Track
A Claim is usually allocated to the Small Claims Track if the claim is worth no more than £5,000 (or no more than £1000 in personal injury cases). Hearings allocated to this track will not normally last more than about three hours.
The Hearings are informal, and strict rules of evidence do not apply. However, generally costs are not recoverable in a Small Claims case, but a court may order legal fees to be paid by a party who has behaved unreasonably.
It is important to note that no expert evidence can be used on the Small Claims Track without permission of the court.
2. Fast Track
A claim is usually allocated to the Fast Track if the claim is worth between £5,000-£15,000. The trial of a Fast Track case will not usually exceed one day and the case may be heard by a District Judge (a lower rank from a County Court or High Court Judge).
Directions are given by the court when the Statements of Case are filed.
A typical timetable a court may give for the preparation of the case is as follows:
Disclosure of documents : 4 weeks
Exchange of Witness Statements : 10 weeks
Exchange of Experts' Reports : 14 weeks
Sending of Listing Questionnaires by the
Court : 20 weeks
Filing of completed Listing Questionnaires: 22 weeks
Trial or final Hearing : 30 weeks
A substantial proportion of the winner’s costs (though subject to complicated rules and scrutiny) can usually be recoverable from the losing party in the Fast Track, although there are some limitations to this.
3. Multi-Track
Cases worth more than £15,000 will generally be dealt with on the Multi-Track, which will give flexibility, and an ability to tailor Case Management and Directions to suit individual cases.
A Judge will give Directions at a Case Management Conference early on in the action; he is likely to give a full timetable for steps to be taken on the way to the trial, and probably a trial date will be written into the diary at that stage. A Multi-Track trial is of indefinite length.
A substantial proportion of the winner’s costs (subject again to complicated rules and scrutiny by the court) can usually be recoverable from the losing party.
Disclosure of Documents
If you are a party to an action you will be required to make a reasonable search for documents which are relevant to the case. You will of course have to disclose all documents on which you will rely, as well as documents which may adversely affect your case or another party's case, or which may even support another party's case.
Expert Evidence
Generally speaking, at least on the Small Claims and Fast Tracks, there is limited reliance on expert evidence and only in exceptional circumstances will spoken evidence from experts be given at trial. The court will try to ensure the parties instruct only one single joint expert.
Evidence and Witness Statements
Except at a trial evidence will generally be given by way of written witness statements. There are detailed provisions about the content of witness statements which must be complied with. The idea is that witness statements should be to the point, not rambling life-histories.
Except in particular circumstances, witnesses (other than expert witnesses) can give spoken evidence at trial.
What happens if parties fail to comply with Rules of the Court?
The court may impose:
• Sanctions in the form of interest on damages at up to 10% over base rate;
• Sanctions upon costs, including an award of costs on an “indemnity basis” (i.e. at a higher rate), and interest at up to 10% over base rate;
• Strict limitations upon the evidence that may be presented when defending a claim.
Offers to Settle
There are detailed rules about how Offers to Settle and Payments into Court should be made, under Part 36 of the CPR. A claimant or Defendant may make a formal offer to settle, naming the amount at which a settlement would be accepted. This may prove a very useful weapon for claimants and defendants, but must be handled carefully.
Costs
There are detailed rules about costs but you must always bear in mind that the Court has a discretion as to whether costs are payable by one party to another, as to the amount of those costs, and as to when they are to be paid.
Alternative Dispute Resolution
A party to proceedings may ask the court for a stay of the proceedings whilst a form of Alternative Dispute Resolution is attempted, and the court will generally encourage such an attempt.
About Us
Any form of dispute is likely to involve substantial cost. Our aim is always to gather information early on and to give you realistic advice as to your prospects of success. We advise and act in most areas of civil law.
Our approach is always to attempt to conciliate and to try to negotiate a settlement if it is in your best interest to do so.
If however court action is the only route, we will advise you about the application to your case of the Civil Procedure Rules. The courts expect close co-operation between judges and participants, and any claim demands commitment from all parties.
We will help you present your case in the best possible way.
The Team: |
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| Michael Freeland | Profile | |
| Joanna Williams | Profile | |
| David Scarrott | Profile |
© Harold Michelmore & Co 2007
Please note that the information and advice in this Note is provided for general guidance only. We believe it is accurate and up to date, but you must seek personal advice on any specific case or matter. We cannot accept liability for your reliance only on information or advice in this note.