No-one in business relishes the thought of taking legal action against another, but from time to time there is no alternative. Litigation is a complex process – here’s our guide to some of the key steps.
You will want to consider every possible alternative to taking legal action, including Alternative Dispute Resolution (see our ADR Take 5 Guide). If you do go down the path of litigation, the first step is to exchange letters with your opponent setting out your position, the evidence you rely on and the damages you are seeking. This is called a Letter of Claim or a Letter Before Action.
You will need to give a reasonable time for a response – 14 days for businesses and 30 days for individuals is usually recommended, although for complicated matters it can be up to three months.
Once that period has passed without a resolution, legal proceedings are started by issuing a Claim Form at the High Court or County Court, which must be served on the Defendant when an issued claim is received.
Most claims must be issued at Court within a certain period of time (known as a ‘limitation period’) or they will become ‘time barred’. Most contractual claims will need to be commenced within six years from the date of the breach of contract.
Court fees for issuing proceedings are usually based on a sliding scale depending on the value of the claim.
Once a claim has been served on the defendant, the defendant must submit a defence to the claim. They have 14 days after service of the claim or, if the defendant files an Acknowledgment of Service, 28 days after service of the claim to file a defence.
An extension of time for submitting a defence can be agreed between parties up to 28 days, or the defendant may apply to the court for an extension of time. The claimant has the option to file a reply to defence if they wish to do so.
The court will send a ‘Notice of Proposed Allocation’ setting out which ‘track’ the claim is allocated to (see below) and when parties need to file a Directions Questionnaire. This questionnaire deals with the next steps to be taken and parties will attempt to agree a timetable of next steps leading up to trial. Otherwise, the court will confirm directions for the rest of the case all the way up to trial.
Claims are allocated to a ‘track’ depending on the value and complexity. Claims that are worth not more than £10,000 are generally allocated to the Small Claims Track.
The other tracks are the Fast Track (generally for claims worth between £10,000–£25,000 and cases where the trial is not likely to last longer than one day) and the Multi Track for any high value or complex claims.
As of 1 October 2023, there is a new intermediary track for cases valued between £25,000-£100,000.
Next comes disclosure – a process where the parties disclose all documents they have or have had in their possession that relates directly to the claim, whether it helps their position or not.
This is done by exchanging lists of documents. Once lists have been exchanged, the parties can ask for copies of the documents they wish to see.
Then the parties will give witness statements, which will usually give a full and detailed account of a person’s knowledge of the issues in question.
A witness may also need to give oral evidence at trial when he may be cross examined by his opponent or his opponent’s legal representatives.
Depending on the issues in dispute, expert evidence may be required. Experts can either be appointed jointly or the parties may each appoint their own expert in a particular field.
Most cases are settled ahead of trial – but if it gets this far, the trial is the final step to proceedings and a judge will determine the case on the evidence and papers before them. The judge may award payment of legal costs to either party, as they see fit.
Once the trial has taken place, judgment will be handed down either immediately, or within a few weeks of trial depending on the complexity.
If you have obtained judgment against the defendant, but the defendant has refused to pay, you may want to enforce the judgment.
Often a first step is applying for an oral examination of the defendant to see what assets are in their name and their financial position so as to dictate the method of enforcement.
There are a number of different methods of enforcement. You can ask the court for:
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