13/03/23

Civil Court Proceedings

Civil Court Proceedings
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Inevitably, disputes in all aspects of life will occur and, however reluctant they may be, individuals, businesses and companies become engaged in court proceedings seeking to prove the correctness of their stance against their opponents.

Such proceedings invariably involve financial cost to the contesting parties, particularly the loser facing the prospect of bearing a substantial portion of the victor’s costs, irrespective of the mental stress and anguish created by the need to fully prepare for a Trial and the accompanying lengthy delays.

It may be the case that the mere threat of the involvement of the court system and the costs involved may change the scope of a dispute and focus the minds of the disputing parties towards achieving a compromised settlement, but frequently that situation fails to materialise.

For those contemplating civil litigation a short outline of the court system in England and Wales may be of assistance and Stuart Southall provides a brief outline.

Court Structure

Initial Division allocation

The civil court system is multi-faceted and split into various divisions with each division dealing with specific natured disputes such as, for example: 

  • Technology & Construction Court
  • Business & Property Courts Chancery Division: breach of contract
  • Kings Bench Division: negligence matters
  • Insolvency and Companies Court: Insolvency

The determination as to which Division is appropriate to handle the dispute is guided by, inter alia, the full nature, value and complexity of the dispute.

Court Track

Irrespective of the Division to which a claim has been initially directed, the matter will be allocated to the appropriate track once the full nature of the dispute is apparent as revealed in the Pleadings and other informative procedural documents, such as the Allocation Questionnaires completed by both parties.

Track determination is subject to the complexity of the matter (and CPR Part 26.8(1) is usually considered by the Court) but generally speaking:

  • Small Claims Track – deals with simple, low value claims, up to £10,000.00 (albeit if the parties agree, it can deal with claims up to £15,000.00)
  • Fast Track – deals with claims up to the value of £100,000.00 (although there is the discretion for this to be higher if the matter is not particularly complex) and
  • Multi-track – for matters generally exceeding £150,000.00, or are particularly complex

Matters of Procedure

Engagement in  a dispute through the civil court process may involve the parties being required to prepare and submit additional discrete procedural documents depending upon the nature of the dispute and  evidential items which may be revealed along the way. However, the following indicates fundamental steps which will always arise.

Statements of Case

In order to establish their respective positions, the Claimant will serve ‘Particulars of Claim’ (or ‘Points of Claim’) to enable the Defendant to understand the nature of the claim being brought, and the Defendant will respond with a ‘Defence’ (or ‘Points of Defence’) setting out why the claim is not accepted.

It is important to ensure that all documents comply with strict court procedural requirements and whilst it is possible to make subsequent amendments, this may prove to be costly.

Disclosure | Witness Statements

Each party is obliged to disclose all documents associated with the dispute, irrespective of whether such disclosure is supportive or detrimental to their position and this is a continuing obligation that does not expire until the trial has commenced to ensure that any document unexpectedly arising is produced to the court.

Obviously, the key element of any dispute is the evidence that each party relies upon.

Accordingly, the parties are required to provide Witness Statements which are highly important documents as the evidence contained within such documents is that upon which each party could be  cross-examined upon during the course of the Trial.

Preparing for Trial | Trial Bundle

Preparation for Trial can be time consuming, especially where the volume of evidence is substantial and there are a number of Witnesses required to give evidence.

Accordingly, it is essential that all of the evidence is clearly gathered in one place to enable the Judge to be readily and quickly drawn to the evidence being considered at any stage.

This is achieved by a ‘Trial Bundle’ being painstakingly prepared and agreed between the parties. This bundle is clearly indexed, paginated, and, if prepared electronically, digitally bookmarked.

Failure to comply with the requirement set down by the CPR when preparing Trial Bundles and can result in delays (which can often have cost consequences).

Trial

Once all of the evidence has been heard by the court, if there is sufficient time available, the court may well announce, (‘hand down’) its Judgment immediately.

It may also deal with consequential matters such as costs and payment of damages.

Where there is insufficient time, the matter can be ‘held over’ to another date.

Costs

Small Claims Track

  • In the main, a Small Claims court does not award costs save for fixed costs such as the Court fee.
  • If a Defendant can prove that the Claimant brought an unmeritorious claim, under the CPR, a Defendant in the Small Claims track is entitled to ask the Court to make an award for costs pursuant to Part 27.14(2)(g) CPR.
  • until a matter is formally allocated to the Small Claims track by the Court, any claim commenced may still be subject to cost provisions if the opponent submits a strike out / summary judgment application and is successful on that application.

Fast or Multi-Track Claims

  • The general position is ‘costs will follow the event.’ This means that a successful party has the expectation that the Court will order that the unsuccessful party pays all or part of the costs incurred
  • However, this expectation is far from being a guarantee and it is not unusual for a Judge to refuse making a Costs Order for any number of reasons such as for example, the Judge taking issue with the conduct of the successful party throughout the proceedings or Trial
  • In assessing costs, the court will turn to a number of supporting guidelines and it may take a considerable period before a final figure is issued
  • In many instances, the Court will have information available to it to make such an Order, such as a Statement of Costs or a Precedent H Budget, and so, will either decide to summarily assess the costs (against which it will provide a ‘reasonable recovery’) or to grant costs as per the Statement of Costs or Precedent H
  • In reality, it is highly unlikely that a successful party, despite complete litigation success, will fully recover the costs incurred
  • There is a distinct difference between being entitled to recover costs and actually recovering them. Should the responsible party fail to settle the costs debt, the appropriate debt recovery proceedings may well become necessary and, of course, if the effect of the failure in the litigation has been catastrophic, the insolvency of the debtor may be an issue

Who Can I Contact for Advice & Help?

Whilst it is not technically necessary to seek expert legal guidance in the pursuit of a civil claim through the courts, civil litigation is fraught with complexities and technicalities which, if not complied with, can quite easily lead to failure and the incurrence of very substantial costs of your opponent.

The Team at Kangs Solicitors is very experienced in handling civil disputes of every nature and would be pleased to assist.

If we can be of assistance, our Team is available via telephone 0333 370 4333 and by email info@kangssolicitors.co.uk.

We provide initial no obligation discussion at our three offices in London, Birmingham and Manchester.

Alternatively, discussions can be held virtually through live conferencing or telephone.

Contact:

Hamraj Kang

Hamraj Kang
Senior Partner

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Tim Thompson

Tim Thompson
Partner

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