Posted By: Luke Patel 17/1/14
Friday 17th January 2014
If you’re lucky you will go through your life without ever having to deal with a legal problem, never mind seeing the inside of a court. However, it’s an unfortunate fact of life that disputes happen. Whether it’s in business or between people, things go wrong, people disagree.
At Blacks, the dispute resolution team helps individuals and businesses with cases ranging from boundary disputes to defamation claims, from debt recovery to negligence by professional advisors. We handle contractual disputes, shareholder disputes and insurance disputes.
You can see a complete list of things we do on our website at www.lawblacks.com but at the end of the day the questions that are asked about court cases are very similar:
I’ve just received a solicitors’ letter. What do I do?
• Don’t panic. But don’t ignore it. These letters often contain deadlines. If they’re not met things may well get more serious.
• If the letter is understandable (not always the case!), you’re clear on your legal position and you know what to say in reply, then go ahead. However, if you need your legal position explained then get advice quickly!
How can I pay for legal advice? Isn’t it really expensive?
• The normal view that legal advice is always really expensive isn’t necessarily right. Sometimes getting the help of a solicitor can be quick and relatively pain-free. A dispute might be sorted out by just one bit of advice or one legal letter. There are also different ways that you might be able to pay your legal costs.
• Sometimes, you can ask a solicitor to represent you on a ‘no win, no fee’ basis. The rules on this sort of arrangement have changed recently so they’re less common but there are still some cases (like defamation) where they’re still available.
• You might have insurance that covers legal expenses and not realise it. Always have a look at the insurance that you’ve taken out already. It’s not uncommon for policies to include cover for legal costs in relation to certain types of dispute.
I want to start a court case. How do I do it?
• You should normally write to the other side (the defendant) first, tell them you think you have a claim against them and explain what the claim is.
• When you start a claim in court, you have to set out your case again in two formal documents known as a Claim Form and the Particulars of Claim. Your claim is then ‘issued’ (stamped) by the court and you have 4 months to get it to the defendant. Getting it to the defendant is known as ‘serving’ it on them and can be done in a number of ways.
• Once the documents have been served, the case is underway. From that point on it gets a life all of its own so it’s always important to be satisfied that you’re in a good position legally-speaking before you go ahead.
What happens next?
• Court cases are governed by a complex set of rules known as the Civil Procedure Rules which set out how the court, claimants, defendants and lawyers should handle a case.
• The defendant has either 14 or 28 days to respond to the claim. This is done in another formal document called a defence. As you would expect the defence sets out why the defendant thinks the claimant is wrong.
• The way a case is handled depends on which ‘track’ it’s on. If it’s a claim for less than £10,000 then it will be on the ‘small claims track’ (what people often refer to as the ‘small claims court’). If it’s for more than that, it will be on the ‘fast track’ and then if it’s for more than £25,000 it will be on the ‘multi-track’.
How do I know what to do and when?
• Whichever track your case is on, the court will set out a timetable for the claim. Small claims are dealt with quickly and simply but in larger claims there are standard stages that a court case goes through. Judges are now very strict when it comes to making sure everyone sticks to the timetable.
What does the court do about evidence?
• ‘Disclosure’: You have to tell the other side what ‘documents’ you have that are relevant to the claim, even those documents which actually damage your case. In a court case ‘documents’ includes more than just papers; they could for example be emails, voicemails, electronic files as well. The other side can look at the documents themselves and ask for copies. There are some documents that you can keep off the list (it’s a complicated area) but the court expects both parties to carry out their search for relevant documents thoroughly and properly.
• ‘Witness statements’: A month or so after the disclosure process is completed, both sides have to swap witness statements. These are the documents that set out the facts of the events that are central to the claim. For example, if you’re claiming for breach of contract where there was nothing in writing a witness statement would be where you would set out the details of what the contract was. Witness statements always have to be signed by the witness and have a ‘statement of truth’ in which the witness promises to the court that they are telling the truth. They are used as evidence at the trial.
What happens at the trial?
• Trials also vary from case to case. In the small claims track, it will be quite informal and the judge will take the lead making sure both parties understand what needs to be done and how it needs to be done. Trials like this normally last for half a court day. Fast-track claims might last for a whole day and will be more formal. Multi-track trials might last for weeks!
• If you have lawyers involved they will normally begin the trial by setting out your case and the lawyer for the other side will do the same. The people who provided witness statements then attend court to be questioned about the evidence in their witness statement so the judge can decide which version of events he or she believes.
• At the end of the trial, the judge will make a decision and explain the reasons behind it. This is known as the judgment. Sometimes judgment is given a while after the trial, particularly if the case was very complicated.
Can I get back the costs of making a claim if I win?
• Yes. The general rule is that the loser in a case has to pay the winner’s costs.
• It’s always up to the court what costs are awarded though. This has two main effects. Firstly, you don’t normally get back all of your costs even if you’re the winner. Secondly, there are circumstances where more or less costs (and possibly no costs at all) might be awarded.
What about trying to negotiate an end to a claim before trial?
• It’s always open to both parties to try to resolve a claim at any time before or after a court case gets started. In fact, the court actively encourages it.
• You can negotiate directly with the other side in person, over the phone, or in writing – what lawyers refer to as ‘without prejudice’ negotiations.
• There are other ways of trying to resolve a claim too. The court refers to something called ‘Alternative Dispute Resolution’ or ‘ADR’. This includes for example getting an expert to decide your dispute for you or mediation where the parties get together to negotiate and are joined by a mediator who is trained in helping parties reach a settlement.
Luke Patel, Blacks
Litigation - General
There are no comments at this time.