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Going to court

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Any dispute is distressing, whether you are the person suing or being sued.  The process is complicated, time-consuming and frequently costly.  To help you, we have set out some of the key areas of confusion and question.

Deciding whether to go to court

We believe that going to court should only be used as a last resort.  It is always our objective to negotiate the best outcome before this point, if possible.  This can take a number of forms:

  • Negotiation –  Put  simply  this  is  where,  having exchanged information, one side or the other presents an offer for discussion and potential agreement.  Making a ‘without prejudice’ offer at this stage is often a productive way to try to resolve matters as this cannot be used against you later, should you go to court.
  • Mediation –  This  can  often  be  a  quick  and inexpensive way to resolve disputes.  Both parties must agree to enter into mediation, which means working with a third-party ‘mediator’, who will help them to reach an agreement.
  • Arbitration –  A  more  expensive  form  of Alternative  Dispute  Resolution, arbitration involves each side presenting their case to an expert arbitrator, who will make a decision on the best, formal way to resolve matters.

In all cases the merits of your case and circumstances will be taken into account before a recommendation is made as to the best course of action.  In all cases we will look out for the best option for you, to ensure you get the best result possible.

Going to court

A  case  that  goes  to  court  usually  starts  by  one  side issuing a claim in the County Court or High Court.    Details  of  this  will  then  be  sent  to  the  defendant so that they can admit liability, make an offer to settle or decide to defend the claim.

If the defendant chooses to defend the claim then what happens next depends on the value of the claim.  Small claims (usually up to about £10,000) usually go through the cheapest and simplest process, in the ‘Small Claims Court’. Larger claims (up to about £25,000) go onto a fast claims track and very large or complicated claims (above £625,000) to a multi-track process.  Your solicitor will be able to advise as to the process you will follow.

The court you go to will set out an ‘order for directions’, which will explain how the case is to be conducted.  This will include things like timescales, when documents need to be disclosed and so on.  It will also tell you when the case has been ‘listed for trial’ and the judge that it will go before.

Can I apply to have a nonsense case thrown out of court?

If you believe (and have taken legal advice to support this) that the claim does not have reasonable grounds, or that the claim form and particulars have been so badly drafted that no legally recognisable claim is disclosed, then you can apply to the court where the claim was started to have it struck out.

If, however, there is a reasonable basis for the claim but no real prospect of the claimant succeeding (or a compelling reason why there should be a trial) then you can also apply for what is known as a ‘summary judgment’.  This means that you would not have to spend time and money preparing and drafting an unnecessary defence.  To apply for this you must set out why the claim has no prospect of success and why there  is  no  reason  for  it  to  proceed  to  trial.    A  judge will consider these in a short court hearing.

Do we have to provide all the information that the other side is asking for?

As  a  general  rule  you  must  disclose  all  documents  relevant to the matter in dispute, even if they might be harmful to your own argument.  You must ask  yourself,  therefore,  whether  their  request  is  relevant and also proportionate to the claim.

However, you do not have to let them see any documents prepared for the purposes of litigation, or for the giving or receiving of legal advice.  These are  what  is  known  as  ‘privileged’.    Documents  that you consider to be commercially sensitive, however, are not included within this privilege, if they are relevant.

In  addition  to  requesting  documents  the  other  side  can  also  ask  for  more  information  or  clarification  on things you have said or provided, relating to the claim.

If you fail to comply with any of this then they can make an application to the court, under the Civil  Procedure  Rules,  for  an  order  requiring  you  to respond, and you would be billed for the costs incurred in making this application.

These rules also apply to any documents in an electronic form known as ‘e-disclosure’.  This can include emails and texts and any other communication of an electronic nature.  Searching and collating this material can be very costly. The court will allow parties to agree on search terms to decide what e-documents to search for.  Your legal advisor will be able to provide you with more information.

Costs budgets

Since  April  2012  the  courts  require  all  parties  to  provide a detailed costed budget of how much expense will be incurred in taking a case through to  trial.    This  is  quiet  an  expensive  procedure  in  its own right.  However, the aim is to let everyone know how much expense is being incurred in dealing with a case by each side to facilitate negotiations to lead to a settlement out of court.

How long will it take to get to court?

Once the claim has been issued the defendant has a maximum of 28 days to respond to the court with  a  fully-reasoned  defence.    At  this  point  the  court  will  send  the  parties  a  questionnaire  to  allow  them to allocate the case to one of the three tracks mentioned earlier in this guide.

Small claims are generally heard within three to six months; fast track claims may take six to nine months and claims on the multi-track can take considerably longer because of their size and complexity.

Once a hearing has been posted it is not possible to vary the date, if inconvenient, simply by agreeing it  with  the  other  party.    A  formal  application  must  be made to the court.

Once I’m there, how long will it take?

This very much depends on your case and the purpose  of  the  hearing.    As  a  general  guide,  small  claims usually take little longer than a couple of hours.  Fast track cases should not last longer than a day.  Multi-track cases, as you might expect, vary from one day to several months, depending on their complexity.

Where will the case be heard?

If the defendant is an individual then the case will automatically be transferred to their home court. If the defendant is not an individual then there is no automatic transfer and the court can decide where  the  case  will  be  heard.    All  parties  will  be  asked whether they have a preference at the point that  they  fill  in  the  questionnaire  to  allocate  the  claim to a particular ‘track’.

Will I need to be a witness?

If you case goes to trial you will have given what is known as a witness statement prior to this, so that it could be exchanged with the other side’s. This will usually stand as your ‘evidence’.  You will not normally be allowed to expand on this, without the judge’s permission, but you will be cross-examined on it’s  content by the other side’s representative.  Even if you are reluctant to do this you can be compelled to, by a witness summons from the court.

The exception to this is when you have applied for a summary judgment.  In this case your witness statement is usually considered alone, without the need for cross-examination. You may also ask other people to give a statement for you too and they will also need to give evidence.

Do I need a barrister?

This depends on your case and the type of court that you are going to.  In some cases your solicitor will be able to act as your representative. However, barristers are experienced advocates and, particularly if you case is complex or high in value, can be a vital part of your team.  They can be used to provide advice in the lead up to court or to actually represent you, once there.

Your solicitor will be able to advise on this and recommend the right barrister.

I don’t agree with the judgment, can I appeal?

The court will take a view on whether you might appeal, once you have applied to them to do so. They will only allow you to if they feel that you have a real prospect of success or that there is some other compelling reason why the appeal should be heard (perhaps new evidence or allegations of a serious procedural or other irregularity).

Can I get my legal costs paid?

In many cases, if a case has come to court, then the loser  is  required  to  pay  some  part  of  the  winner’s  costs.  Each case is assessed on an individual basis.  The court will consider how reasonable the winner’s costs are, their proportionate nature to the case, the conduct of the parties, whether a party has succeeded in all or part of its case and whether there have been offers to settle.

This can be agreed ahead of the hearing, in discussion with all parties.

However, it’s important to remember, before going into any form of litigation, that this is never a guaranteed ‘repayment’ and you should make provision to cover your own costs in full, before you start.

What happens at the end?  Enforcing a judgment.

It’s an important consideration, prior to even issuing a claim as to whether the defendant will be able to satisfy any judgment entered against them.

Once a judgment is entered it is effective immediately.  That means that payment should be made ‘forthwith’ (usually within what is considered to be a ‘reasonable’ period).

However, the courts, if requested, can enforce a judgment.  This could include asking for a warrant of execution, an attachment of earnings order, a third party debt order, or a charging order, or even making someone bankrupt.

A  warrant  of  execution  gives  county  court  bailiffs  or  High  Court  enforcement  officers  the  authority  to take goods from the defendant’s home or business.    An  attachment  of  earnings  order  can  be  sent to the debtor’s employer, authorising them to deduct  an  amount  from  the  debtor’s  pay  cheque  each  pay  day,  and  send  it  to  a  collection  office,  from which it will be sent on to the creditor.  If the debtor has cash or other assets, but is refusing to pay, a third party debt order can be issued to stop them from removing money from their bank or building society account, and authorising the bank or building society to pay the creditor from  the  account.    A  charging  order  prevents  the  debtor from selling assets (such as property, land or investments), without paying what is owed under the judgment.  Finally, if the amount owed is more than £750, the creditor can apply to make the debtor bankrupt.

For more information about potentially bringing a claim or going to court contact Elizabeth Fry on 0117 9292811.

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