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The Civil Litigation Claims Process
Establish whether you have a claim
There are lots of different types of possible civil claims. You may have been injured or defamed. You might be owed money by someone who has failed to pay, or someone may have broken a contract with you. In every case, your first step is to establish whether you have a claim or not. We are here to discuss your case with you and we will look at the legal aspects together with the facts of the case. We will then advise you on the strength of your case and whether you have a valid claim or not. Vitally, we will also ensure you know what the weaker areas of your case are.
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Assemble your case
The next step is to instruct us and agree how the legal costs will be paid. This will generally be on either a private retainer agreement (hourly or fixed fees) or on a conditional fee agreement (CFA), otherwise known as “no-win, no-fee”.
Once instructed, we will begin assembling the various elements of your case:
- Interview witnesses and prepare witness statements
- Assemble and preserve relevant documents
- Collate and preserve physical evidence, such as contracts, photographs, police reports
- If necessary hire experts to produce reports, such as surveyors, doctors, accountants
- If needed ask specialist barrister for detailed advice
- Determine who and where the defendant is
- Consider the limitation period applicable
- Re-examine the legal aspects and facts of your case in greater depth
- Work out the legal framework for your claim.
Pre-action protocols and ADR
This is the most important stage of your claim as it is where both parties detail their case before court proceedings are issued. You must follow the Civil litigation pre-action protocols, or you risk your case falling at the first hurdle. If you instruct us, we will ensure you follow the correct protocol for your type of case.
Essentially, this requires the claimant to provide the defendant with a detailed “letter before claim” setting out their case. The defendant then has an opportunity to respond, defending their position and possibly issuing a counter-claim. This process, once underway, means both sides get an understanding of the strengths and weaknesses of their respective sides of the case, meaning both parties should then be more open to negotiate a settlement or enter into some form of alternative dispute resolution (ADR) such as civil mediation, rather than go forward to expensive and lengthy court proceedings.
Offers to enter into ADR and offers to settle become particularly significant at this point. Firstly because the majority of cases do not end up in court, so the settlement offers are more than likely going to affect the outcome of your case. Secondly, if you do end up in court, when assessing costs, the court will consider the manner in which each party approached discussions about ADR and settlement.
If the pre-action correspondence and negotiation/ADR does not resolve your dispute, we will discuss with you whether to apply for formal court proceedings. If so, this will involve submitting a claim form to the court and to the defendant. The defendant will then need to file an acknowledgment of service, a defence or an admission. If they do not respond we would apply for a default judgement to be entered by the court against the defendant.
Once the application has been received with the relevant court fee, the court will allocate your case to a particular track - small claims track, fast track or multi-track. The track will depend on the amount in dispute and the complexity of your case. The more complex your case, the more points of contact there will be with the court.
Very few civil litigation cases actually make it to trial, as the courts strongly encourage parties to settle before trial. However if you do get to trial, this is where witnesses will give their evidence and will be crossed examined. This gives parties the opportunity to reveal flaws in their opponent’s case. Each party can re-examine their own witnesses. After presenting their respective cases, each party’s advocate gives a closing speech.
Judgment and Costs
Depending on the complexity of the case, judgement will be given by the court on the same day or will be reserved for a later date. At this point they will assign liability (who is to blame), give an award of damages or other financial recompense plus interest due and make an order as to who is responsible for paying the legal costs. Usually the loser is responsible for a proportion of the winner’s costs, however, the level is up to the discretion of the court and will depend of the conduct of the parties prior to the court proceeding, i.e. whether they tried to resolve the dispute .
Unfortunately in many instances, the monies ordered to be paid by the court, do not automatically get paid and so you may have to take enforcement action against them which can result in more costs. However, these additional costs can be sought from the losing party and they will be added on to the amount owed.
Making an appeal is quite a complex process and can only be done in a defined set of circumstances, such as when it is believed the trial court did not correctly apply the law. We have experience of taking cases to the court of appeal and as a result can advise you if your case has the merit to seek permission to appeal.
What are your next steps?
We regularly advise and represent people and businesses on civil litigation matters. We will give you honest advice on the substance of your claim or defence and will help you to put forward the best case possible. We are expert negotiators who understand the importance of tactics in settling cases without the need for court action. Our main aim is to make the best result possible for you, whilst keeping legal costs down. Call us today all us on 01935 823883 to discuss your dispute. We will help you to find the best way forward.