You are hereSeven Stages of the civil court process
Seven Stages of the civil court process
This is a very brief overview to how our civil court process works.
Detailed legal advice on the merits of a claim and procedure should be sought in all cases so as to avoid unnecessary heartache and cost later. Also many types of case have peculiarities in their procedure although, other than possession of property cases which must be distinguished from this overview, most follow the broad outline below.
The person who is suing is called the Claimant. The person who receives the claim is called the Defendant. I have used the male gender for convenience only, although a Claimant can of course be male or female or even neuter in the case of a limited company!
Stage One - foreplay
Whilst a Claimant is not prevented in law from going straight to court process without corresponding first and attempting to resolve without using it, the courts discourage such an approach except in the most urgent of cases and may well disallow legal costs against the Defendant even if the Claimant succeeds completely with his case.
There are specific procedures called ‘pre-action protocols’ for specific types of case, such as professional negligence and defamation and a general one for all others, which, broadly, set out a procedure for exchange of letters setting out the case for and against the claim and disclosure of key documents.
Stage Two – getting going
If court proceedings however become necessary, the Claimant starts by filing a Claim Form at court (there are rules about which court) usually, except in the simplest of debt cases, accompanied by a longer document called ‘Particulars of Claim’. The appropriate court fee has to be paid and copies provided for service by the court. The Defendant has 14 days from receipt (service) of the Claim Form to file an admission, accompanied with a proposal to pay if applicable, or an intention to defend. If he does the latter he will then have a further 14 days to file an defence unless the Claimant agrees or the court allows a further extension of time.
Stage Three – anti-climax
If the claim is defended, the next stage will usually be the court ordering the completion of what is known as an Allocation Questionnaire. This is quite a lengthy procedural document which requires both parties to give some quite detailed information, not about the merits of their case but, for instance, about where they want the case to be held, how many witnesses (which will in part determine how much court time needs to be set aside), whether there is a need for expert evidence e.g. a medical report (e.g. in a personal injury case) or a surveyor (e.g. in a building case). When these Allocation Questionnaires have been filed (which also usually involves another fee), the court file will go in one of the district judge’s ‘box work’ for ‘directions’ as to how the case should proceed to trial. Sometimes, whether in response to a request from one or both parties or of it own initiative, the court fixes a hearing to decide procedural issues, which is called a case management conference or directions appointment. Examples where such a hearing is set is where is a dispute as to whether expert evidence is necessary, or if it is, how it should be progressed, with the court’s preference often being for there to be a single joint expert reporting to the court rather than two experts i.e. one for each party. The court may also make a direction for mediation to be attempted to resolve the case even at this stage (see our mediation page).
The court will often also assign the case to a ‘track’, usually depending on it’s monetary value. The small claims track is currently for claims under £5000 although this limit is set to rise. In a small claim the procedure up to and at trial will be more informal than on the higher tracks and the legal costs of representation are not recoverable by the winning party against the losing with certain exceptions.
Sometimes the court orders further formal legal exchanges beyond the defence, especially if a counterclaim has been filed as a defence to the counterclaim itself is required so that all legal positioning is clear.
Stage Four – continued activity
It is difficult to summarise this stage. In many ways it is the most important and certainly the most lengthy and comprises all the sub-stages that have to be taken until a case gets to trial in accordance with the court’s directions. Such sub-stages vary tremendously for the type of case: it is difficult to compare directly a £million commercial building dispute with a neighbour case over boundaries. But broadly all cases will involve disclosure of relevant documents and careful drafting of witness statements, the latter forming the evidence in chief which a witness can be cross-examined upon at trial. In many cases the obtaining of expert reports and written questioning of experts will form another sub-stage. Any decent solicitor will be in regular correspondence with his opposite number in progressing these sub-stages as well as keeping an eye to any opportunity to settle the case on terms favourable to his client and/or in accordance with his client’s instructions, as well as advising his client throughout on whether his view of the merits and ability to enforce a judgment if necessary (see Stage Seven) has been affected as the case progresses. Witness Statements in particular can be very revealing and lead to some reappraisal of the strength of the case sometimes by the drafting solicitor of his own client’s case, more often of the other side’s when statements have been exchanged.
Stage Five – pre-climax
In larger cases there is usually a Listing Questionnaire/Pre-trial Checklist stage which is like the Allocation Questionnaire although nearing the end of the case not the beginning, and deals with confirmation as to whether all directions have been complied with as well as information necessary for listing for trial. In other cases the hearing date is set without reference to any further questionnaire.
Stage Six - climax
This is the trial itself. It is worth pointing out at this point that only a small percentage of cases (other than possession cases which as I have said have a different procedure anyway) end up with a trial. In my career it has certainly been less than 5%. This is because if a coincidence of both parties’ views of the strength of their position and willingness to negotiate (obviously often connected) is not apparent before proceedings, it can often become apparent as the case progresses, particularly as the case continues to be reassessed when legal documents and evidence have all been exchanged.
If a trial occurs there are set rules for how it is conducted which I will not deal with in this article as it requires a separate one.
The judge will adjudicate the facts and decide any issues of law after hearing argument. He will then decide who ‘wins’ and ‘loses’, although it must be said that it this itself is not always a straightforward position: the Claimant may win on some issues, the Defendant on others and sometimes there is no clear winner. This is important because it may impact another important decision by the judge, namely whether one party should be ordered to pay some or all of the other party’s legal costs. A good solicitor will have anticipated the possible outcomes at trial, both us to the judgment and the costs, and advised his client accordingly so there are no nasty surprises which have not been taken into account before risking a trial determination.
Stage Seven – post-climax
A judgment, for money at least, is a hollow victory if the money if not honoured and paid: worst of all, if it is a case of can’t pay not won’t pay. This is why a good solicitor will consider with his client before a court case starts whether there will be any difficulties enforcing a judgment and costs order if he is acting for a Claimant who succeeds at trial, or a costs order against the Claimant if he is acting for a Defendant who succeeds. There are various methods of enforcement – bailiffs, bankruptcy, attachment of earnings, charging orders, orders for sale to name some popular ones – but the risks and costs of all should be considered before you start litigation especially if an offer is already on the table.