Guidance on Bringing a Claim to Court

Whenever parties are engaged in any form of litigation, it can be a stressful and emotionally fraught period. Our specialist commercial litigation team has extensive experience and expertise in all phases of a dispute from the pre-action phase to trial. We have experience in a variety of claims and can provide expert guidance on strategy and legal procedures.

If you are either considering litigation or already in the middle of litigation, our team can provide advice from ad-hoc advice to formal representation.

Our team can advise on all aspects of a claim throughout its lifetime, as set out below:

Pre-Action

At the outset of a dispute, it is important to exchange sufficient information to understand each other’s position. For a person wishing to initiate a claim (prospective claimant), a Letter before Claim will need to be issued, providing a reasonable time for the prospective defendant to respond.

The defendant then has a reasonable time to respond to the Letter before Claim. This is usually between 14 and 30 days, depending on the type of claim.

At this stage, further negotiation and settlement can occur, and our dispute resolution team is comprised of commercially minded lawyers, who can broker negotiations and settlements that can often avoid a matter progressing to litigation.

Issuing a Claim (Claim Form and Particulars of Claim)

After the Letter before Action, the prospective claimant will need to issue a claim form at court and pay the required fee. Alongside this, a set of Particulars of Claim will need to be prepared setting out full details of the claim, including the alleged facts on which the claim is based. The particulars could be included on the claim form, but they are often included in a separate document.

Our team can prepare the necessary paperwork for you promptly, and where necessary, can arrange for barristers with the appropriate experience to assist in preparing these documents where the matter may be more complex and warrants barrister involvement early in the case.

Acknowledgement of Service

The defendant must file an acknowledgement of service, indicating whether they intend to defend all or part of the claim. The defendant may also indicate whether they intend to contest the court's jurisdiction to hear the claim.

Defence (and Counterclaim/Additional Claims)

The defence is a formal response to the Particulars of Claim, setting out which allegations a defendant admits, denies or neither admits nor denies. If the defence is not filed within the deadlines, the claimant may be able to apply to the court for judgment in default of a defence.

This can also comprise of a counterclaim or an additional claim against another party.

Subsequent Statements of Case

The claimant is not obliged to file a reply to the defence but can do so if they wish to address any points made in the Defence or Counterclaim.

Our team can assist with drafting and preparing any necessary reply to the defence and can indeed advise on whether this is necessary.

Interim Remedies and Financial Judgments without Trial

In some cases, it may be possible to obtain a remedy or judgment before a trial. Some examples of this include:

• Default Judgment.
• Summary Judgment.
• Strike Out.
• Security for Costs.
• Interim Injunction.

Our team is well versed with each of these interim remedies and judgments and will be able to effectively guide and manage your case strategy to adopt these methods where necessary.

Case Management

After a defence has been filed, the court will decide on the most suitable track for the claim and then serve a notice of proposed allocation on each party. The tracks to which a matter may be allocated are as follows:

• The “small claims track.” This is typically for cases with a value of £10,000 or less.
• The “fast track". This is typically for cases with a value of between £10,000 to £25,000. There are four bands within the fast track and your case will be allocated to a band within this track based on the complexity of the dispute.
• The “intermediate track.” This is typically for claims between £25,000 and £100,000 that do not involve more than two expert witnesses, have no more than two parties to either side of a dispute and can be tried in three days or less. There are four bands within the intermediate track and your case will be allocated to a band within this track based on the complexity of the dispute.
• The “multi-track.” This is typically for more complex disputes and those over £100,000.

Note: Depending on the track that you are allocated, cost recovery may be permitted. However, these costs may be capped at a certain proportion, or you may not be permitted to recover costs at all, such as on the small claims track where each party is to bear their costs. Our team will be able to advise you as to the track and band (if applicable) your case will be allocated and will be able to inform you of the cost recovery prospects that result from that.

Directions Questionnaire

This provides some information to the court so it can allocate the case appropriately. Depending on the value of your case, it may also be necessary to prepare a cost budget simultaneously and our team can advise you if this is the case.

Case Management Conference

A case management conference (CMC) is a procedural hearing where the court gives directions for the future conduct of the case until trial.

Interim Applications

An interim application is made when a party seeks an order before the trial. An application may be made for a variety of procedural or tactical reasons.

Settlement and Negotiations

It is important to keep settlement in mind at each stage of the proceedings. The CPR and the courts encourage the settlement of disputes in several ways. If a settlement is likely to be reached, it is better to do so at the earliest opportunity to avoid further legal costs.

Our expert dispute resolution solicitors will proactively advise you at all stages on any settlement offers proposed and the viability of those. We are a commercially minded practice and will seek to resolve disputes in amicable ways, with litigation being a last resort if necessary.

Evidence - Disclosure of Documents and Witness Statements

For a court to accept a claim, the claimant must prove their case by adducing evidence to support each of the essential ingredients of the claim.

The defendant will also need to adduce evidence to support their defence and to deal with the elements of the claim that is in dispute.

It is useful to identify any individuals who were involved in the events that led to the claim. If the claim proceeds, it will be necessary to prepare a written statement of the evidence that each individual intends to give to either support the defence or the claim. These statements are then sent to the other party, who will then prepare and serve their statements.

Expert Evidence

Expert evidence is used when the case involves matters in which the court does not have the necessary technical or academic knowledge, or the case involves foreign law.

We have a range of experts in our network that we can refer to you.

Trial

This is the substantive hearing where your case will be decided.

We will prepare you at all stages of this process and will ensure that you have the support of a suitably experienced barrister by your side.

Judgment and Costs

A judgment usually follows the trial hearing itself but sometimes can follow later.

In respect of cost recovery, this depends on the ‘track’ your case has been allocated to and whether cost recovery is permitted, and if so, the proportion you are permitted to recover.

Appeals

The unsuccessful party may apply for permission to appeal a judgment or order. However, a decision may only be appealed on the basis that the decision was either wrong or unjust because of a serious procedural or other irregularity in the proceedings.

Enforcement

For judgments for a monetary sum, the debtor should voluntarily pay the amount ordered.

If they fail to do so, then we can take further action to enforce the judgement. For our recovery and enforcement services, please visit our Debt Recovery for more information.

Please contact our team on 0345 646 0406 or fill in our online enquiry form and a member of our team will be in touch.