Litigation is a complicated matter. Below, we endeavour to set out how a claim proceeds from sending the initial letter of claim through to Trial and enforcement.  For the sake of simplicity, the steps set out are those followed by a Claimant in pursuing a claim for a liquidated amount of money, however, they are likely to be of as much assistance if you are a potential Defendant. Certain types of claim are governed by different court rules. These are set out in Part 8 of the Civil Procedure Rules and the procedures in these types of cases are not the same as those set out below. Part 8 governs areas such as Inheritance disputes or claims in relation to the ownership of land.

This is simply an introduction to the progress of a Court Claim. By its very nature the information included in this introduction is set out in insufficient detail to enable it to be used as a guide should you be considering embarking upon litigation. In the circumstances Eastleys do not accept any liability in connection with the contents of this introduction.   

If you wish, you can jump to a specific part of the progress by clicking the links below:

Pre-issue  |  Settlement  |  The issue of proceedings  | Allocation of Track |  Directions - Small Claims Track  /  Fast Track/Multi-Track  | Trial  |  Appeals  |  Enforcement  |  Bankruptcy/winding up  | Charging Order  |  Enforcement Officer  |  Attachment of Earnings  |  Third Party Debt Order  |  Conclusion

Pre-issue

1. The first step is for a letter of claim to be sent to the Defendant. Often, a Solicitor’s letter is sufficient to result in settlement.

2.  Many types of litigation now have pre-action protocols, which set out the steps that the Court expects parties to follow before proceedings are issued. If the claim is disputed the pre-action protocols encourage parties to be open-handed and to consider the possibility of entering into Mediation/Alternative Dispute Resolution at an early stage in the hope of avoiding litigation. Even if no protocol is applicable to the type of claim, the Court will still expect parties to be open handed in their pre issue correspondence, for example, by providing copies of relevant documentation to assist the other party in considering its position. 

3. In some cases, Court proceedings are not appropriate, for example, if the claim involves a contract that contains an arbitration clause, in which case the matter should be determined by arbitration.

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Settlement

It is unusual for matters to litigate all the way to a fully contested trial.  The Court rules provide that letters of offer can be made to the other party, which are not brought to the trial judge’s attention until after the trial is heard.  If an offer letter is sent in the correct form (a part 36 offer) which the other party refuses and fails to beat at trial that party is likely to be penalised in costs even if their claim is otherwise successful.  If a defendant wishes to make part 36 offer after proceedings have been issued, it will be necessary for the defendant to pay the amount offered into court.  For the part 36 offer to be effective, it must be open for at least 21 days after receipt, and must advise the other party of the possible consequences of refusing that offer. 

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The issue of proceedings

1. A claim form and Particulars of Claim are drafted and sent to the Court.  For the majority of claims the appropriate Court is the County Court although large value and complex litigation is heard in the High Court. 

2. Once proceedings are served, the Defendant has fourteen days in which to acknowledge service stating whether or not he intends to defend the action. If the Defendant fails to acknowledge service, Default Judgment can be entered against him. If the Claimant seeks a liquidated amount of money, Default Judgement can be entered for the amount claimed in the proceedings including interest and scale costs.

3. Should the Defendant acknowledge service stating that he intends to defend the proceedings, he has a further fourteen days in which to file a Defence, although an extension of time can be granted. If no Defence is filed and served the Claimant can apply for Default Judgment. 

4. If it is clear that the Defence has no reasonable prospect of succeeding, it is possible for the Claimant to apply to the Court for Summary Judgement.   Evidence in such an application is given by Witness Statements and therefore the necessity of a full Trial is avoided. It is possible to make a Summary Judgment Application at any time during the course of the proceedings after the Defendant has acknowledged service, unless the claim has been allocated to the Small Claims Track. A Defendant can also apply for Summary Judgment and ask that the claim be struck out if it has no reasonable prospect of success. 

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Allocation of Track

1. Once a Defence has been filed, the Court will send the parties an Allocation Questionnaire in which they will have to provide certain information concerning the case. The Court will then decide the Track in which the matter will proceed.
    

2. There are three Tracks, the Small Claims Track, the Fast Track and the Multi Track. Although every case is looked upon individually, the general rule is that if the claim is worth £5,000 or less, it will be heard in the Court’s Small Claims Track.  If the claim is not worth more than £15,000, but over £5,000, it will be heard in the Fast Track and claims worth over £15,000 will be heard in the Multi Track.
    

3. When allocating the Track the Court will direct what procedural steps (“directions”) need to be followed up to Trial. The Court may require parties to attend a case management conference at which directions will be set.

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Directions - Small Claims Track

1. Directions vary from court to court however in the Small Claims Track directions are generally limited to the parties filing and exchanging all documentation that they rely upon.  The matter is heard by a District Judge and, depending upon the Court’s list, Small Claims Hearings can be heard relatively soon after allocation. 
    

2. The important point to note about Small Claims Track Actions is that the Court will only award scale costs against the defeated party unless they are persuaded that the losing party has acted unreasonably. As a consequence, if Solicitors are instructed in an action allocated to at a Small Claims Track, it is unlikely that their costs will be recovered.  Scale costs are limited to the Scale Costs of issue and the expenses of the party attending at Court on the day of the Hearing.

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Directions - Fast Track/Multi-Track

1. Directions set for Fast Track and Multi Track matters are similar.  Directions include a requirement that the parties prepare a list of documents listing all documentation that they hold that supports or harms the case of any party in the action or is required to be disclosed by any relevant Practice Direction. Copies of these documents need to be provided to the other parties if so requested.  Correspondence passing between the client and their Solicitors is privileged and need not be disclosed, as is documentation internal to the litigant and prepared in contemplation or furtherance of the proceedings. 
    

2. The Court will direct that Witness Statements are exchanged between the parties. These statements set out the evidence of fact that the parties’ witnesses intent to give at Trial.
    

3. If necessary, the Court will direct that experts are instructed.  When expert’s reports are required, the Court encourages the parties to jointly instruct the expert to minimise the costs involved.
    

4. The Court can direct that a further procedural hearing be held before Trial to see that all the Court’s directions have been correctly followed. Trial Bundles and Case Summaries will need to be prepared before the Trial to ensure that the Court has all the relevant papers before it and is aware of the issues in dispute before the Trial starts.

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Trial

1. Small claims trials are relatively informal. The parties sit around the table with a District Judge where they put their respective cases and the District Judge reaches his final decision. 
    

2. In a Fast Track Action, the Court will not allow the Trial to last longer than one day and imposes strict time-tables upon the advocates to ensure that this is the case.  On Multi Track Trials the strict deadlines do not apply. 
    

3. Ordinarily, in Fast and Multi Track Trials, parties are represented by a Barrister, although it is possible for Solicitors to undertake the advocacy instead or the litigant in person.
    

4. The Trial ordinarily starts with the Claimant’s Advocate explaining his case to the Judge.  He then calls the Claimant’s witnesses in turn to give their evidence to the Court.  After the Witness is referred to his witness statement, he is cross-examined by the Defendant’s Barrister. The Claimant’s Barrister then has a chance to re-examine the Witnesses on any points arising out of the cross-examination.
    

5. The Defendant’s advocate then follows the same procedures with the Defendant’s Witnesses.
    

6. The Trial ends with the Advocates making their closing submissions to the Judge who then delivers his Judgment.  Judgments may not be handed down for a number of days, weeks or even months after the trial whilst the Judge considers the law and all the evidence that has appeared before him.

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Appeals

If the Judge finds against you at Trial, it may be possible to appeal. It is difficult to successfully appeal. Leave must be obtained before an appeal can start. Unless it can be shown that there was an abuse of process, leave will only be given for an appeal to be heard if there is an argument that the Trial Judge made an error in deciding the law.  The fact that the Trial Judge preferred another party’s evidence to your own is not a ground for appeal. The Court of Appeal will hear appeals in relation to judgments given in the Fast Track or Multi Track trials.  In some circumstances the Court of Appeal in turn can be appealed to the House of Lords.

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Enforcement

If, after you have obtained Judgment, (whether it be Default Judgment, Summary Judgment or a Judgment after Trial), payment is still not received, there are various enforcement procedures available to Judgment Creditors. These include:

Bankruptcy/winding up
If the judgement debtor is an individual, the judgement creditor can bring bankruptcy proceedings against him. If the judgement debtor is a company, the creditor can bring winding up proceedings.  A judgment is not necessary to bankrupt an individual or wind up a company provided that the debt is not in dispute.

Charging Order
An application for a charging order can be made against the Judgment Debtor’s property. This will result in a notice being registered against that property, which will need to be cleared if the Judgment Debtor wishes the property to be sold. Once such an order has been made, it is also possible for the Judgment Creditor to apply to the Court for an order for forced sale i.e. an order that the property is sold and the Judgment debt repaid from the sale proceeds. Such an application can also be made in respect of any shares that the Judgment Debtor may own.

Enforcement Officer
The Court’s Enforcement Officers (previously known as Sheriffs) in the High Court and the Bailiffs in the County Court can be instructed to remove and sell the Judgment Debtor’s belongings to the value of the claim.

Attachment of Earnings
If the Judgment Debtor is in employment and is not self employed, an Attachment of Earnings Order can be obtained. This provides that a Judgment Debtor’s employer has to pay a certain proportion of its employee’s salary to the Judgment Creditor until the Judgment Debt has been paid.

Third Party Debt Order
Third Party Debt Orders can be applied for which can result in the bank paying all or part of the Judgment Debt from monies held in the Judgement Debtor’s bank account.  This type of order can also be used to provide that third parties who owe the Judgment Debtor money are ordered to pay the money to the Judgment Creditor instead.

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Conclusion

Court procedures are complex and there are many and varied pitfalls. Although the above example sets out the all the steps up to Trial, it is extremely unusual for matters to proceed all the way to a fully contested Trial.  We at Eastleys have wide experience in all types of litigation that can assist you throughout a Court Action.

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