Overview of Civil Litigation

Transcription

1 Overview f Civil Litigatin What is civil litigatin? Civil litigatin is the area f legal practice cncerned with reslving disputes between individuals r businesses. Sme f the areas f wrk that this might include are: Business disputes Debt recvery Partnership disputes Prperty issues Nuisance Bundary disputes Damage t prperty Landlrd and tenant Breach f cntract Gds and services Persnal injury Prfessinal negligence Cntentius prbate Negligence Breach f Trust Libel It includes cases heard in all the civil curts such as the Cunty Curt, High Curt and the civil divisin f the Curt f Appeal. Sme areas f civil law are hwever subject t different rules such as matrimnial and children wrk, adptin and care prceedings, inslvency and nn-cntested prbate. The Overriding Objective f the curt rules is fr cases t be dealt with justly. Dealing with a case justly includes: ensuring that the parties are n an equal fting; saving expense; dealing with the case in ways which are prprtinate t the amunt f mney invlved; t the imprtance f the case; t the cmplexity f the issues; and t the financial psitin f each party; ensuring that it is dealt with expeditiusly and fairly; and alltting t it an apprpriate share f the curt s resurces, while taking int accunt the need t allt resurces t ther cases. All the parties are expected t help the curt t achieve these aims. Hw can the curts help me? Depending n the type and nature f yur case, the curts have pwers t grant a range f rders that can be rughly categrised int three types: Damages i.e. mney. This culd be general damages t cmpensate fr the pain and suffering caused t the victim f an injury, r special damages t cmpensate fr actual lsses such as lss f earnings. - 1

2 Injunctins An injunctin is a curt rder telling smene that they must d smething (r stp ding smething) t help put the situatin right, e.g. t take dwn a fence. Declaratry A judgement f the curt that declares the rights f the parties e.g. t specify where a bundary lies between tw prperties. A Last Resrt Despite the bravad yu may hear when parties threaten t see yu in curt, curt prceedings shuld generally be a last resrt. The rules make it clear that if the parties fail t try and reslve the dispute themselves, the curt will take a very dim view and culd penalise parties wh have nt behaved reasnably. Fr this reasn, a surprisingly small prprtin f cases actually g all the way t trial and varius methds f Alternative Dispute Reslutin (ADR) are increasingly being adpted. Hw much will my case cst me? We will tell yu hw much we think yur case will cst. Hwever, it is usually nt pssible t prvide yu with an exact figure as this depends n factrs that may nt be freseeable at the start f a case e.g. the stance and behaviur f bth sides in the matter, and any final agreement r curt rder. In additin t disbursements (i.e. ut f pcket csts such as expert s fees), csts are based n an hurly rate and s will depend n hw much time needs t be spent n things like meetings with yurself and thers, preparatin f letters and dcuments, curt hearings and giving prper cnsideratin t all the papers. We will ften ask fr staged payments in advance t cver nging legal wrk dne n yur behalf and/r send yu interim bills cvering the wrk t date at any given time. Yu can help t keep csts dwn by ensuring that yu give us all the infrmatin required in a prmpt, cncise and accurate way. Often a written summary r chrnlgy f events will help, as will ensuring that any relevant dcuments and papers are presented t us in a clear and rderly way. Insurance yu may already have legal expense insurance that culd help t pay the cst f instructing a slicitr. Yu shuld examine yur husehld and mtr insurance plicies and if in dubt, check with us. Public Funding (Legal Aid) Currently, T A Matthews nly ffers public funding in matters relating t matrimnial and children affairs. If yur case might be eligible fr public funding we will tell yu but yu may have t find anther firm f slicitrs that ffers Public Funding in the relevant area. Eligibility fr Public Funding depends n having incme and capital belw certain threshlds. Funding is nt available fr business related matters, cnveyancing r persnal injury wrk. Yu shuld als remember that if yur case is successful, yu are likely t have t pay back yur legal csts t the gvernment. N win N fee These are called Cnditinal Fee Agreements (CFAs). We d nt have t ffer yu a CFA but will generally d s in persnal injury matters, if certain cnditins are met. CFAs are based n the principle that if yur case is wn, ur fees must be paid n ur usual hurly rate plus an agreed percentage increase. The increase is knwn as a success fee. Yu may be advised t purchase an After the Event insurance plicy t insure against the risks f lsing, e.g. having t pay - 2

3 yur ppnent s csts. The success fee can frm part f the csts yu can claim against the ther side. If yu d nt win yur case yu will nt have t pay ur usual fees but yu may still have t pay fr disbursements and yur ppnent s csts, subject t any insurance yu have t help cver these. First steps Whether yu are starting a case r defending ne, the first jb is t make an initial assessment f yur case and t give preliminary advice n yur ptins. Frm an early stage yu need t knw the strengths and weaknesses f yur case and t have a gd idea abut the pssible utcmes. It is als imprtant t knw yur enemy! Is it an individual, a firm r a cmpany? D they have the resurces t pay? There are als time limits, knwn as limitatin perids, in which t start prceedings. If yu run a business yu need t think abut whether there are cmmercial factrs that might effect yur decisins. Is there any ptential fr business with the ther side that wuld be lst by cmmencing prceedings? Can yu affrd the distractin f legal prceedings and time away frm yur cre business activities? Wuld prceedings bring adverse publicity? Accrdingly, yur slicitr will pursue yur case with yur best interests in mind, but it is als his r her jb t pint ut sme f the dwnsides and risks f litigatin fr yu t cnsider. Pre-actin The curt rules include pre-actin prtcls. These cntain guidance abut what steps the curt will expect parties t take prir t starting frmal prceedings. If there is n specific prtcl that applies t yur type f case, yu are still expected t take certain steps and t behave reasnably. As a minimum this will invlve sending a Letter Befre Claim utlining the claim and what the ther side can d t prevent it e.g. t pay the mney wed. Alternative Dispute Reslutin (ADR) It is increasingly imprtant fr parties t try t reslve their disputes withut invlvement f the curts. ADR can take place at almst anytime, befre r after the cmmencement f prceedings. Sme methds f ADR are explained belw: Negtiatin almst all claims are subject t sme negtiatin between the parties. If an agreement cannt be reached, the parties shuld still try and narrw dwn the issues that are actually in dispute. Often, negtiatins take place withut prejudice save as t csts which means that the curt is nt allwed t knw abut thse negtiatins until it cmes t cnsider csts. Part 36 This refers t part 36 f the curt rules. Part 36 sets ut a frmal way that the parties can make ffers t settle their cases. Such ffers can have significant tactical implicatins. Say Je Blggs wes yu 10,000. Yu decide that in rder t avid the csts and risks f litigatin that yu wuld be prepared t settle fr 8,000. Yu shuld make a part 36 ffer t settle fr 8,000. If Je accepts and pays up he will als have t pay yur csts up t that pint. If he des nt accept, the matter mves n t trial. If the curt awards yu 8,000 r mre, the judge will be able t say, with the benefit f hindsight, that Je shuld have accepted yur earlier ffer. Je will usually have t pay yur csts n a basis that is mre favurable t yu, alng with extra interest. - 3

4 Mediatin. invlves a prfessinal mediatr talking t bth parties and then bringing them tgether fr a meeting t help reach an agreement. The mediatr shuld nt give legal advice r make any judgement n the merits f either party s case. Neutral Evaluatin invlves an expert r judge giving an pinin n the respective merits f the case. The evaluatin is nt binding but it can be very difficult t ignre! Arbitratin is ften seen in cmmercial r trade unin cases when the parties may have agreed in their riginal cntracts with each ther t allw an independent arbitratr t make a decisin abut any disputes that might subsequently arise. Starting prceedings The claimant starts prceedings by taking a claim frm and a fee t curt. The claimant must als prduce Particulars f Claim which is a dcument setting ut the full basis f their claim. The curt will issue the claim by dating it and stamping it with the curt s seal. Within strict time limits the claim then has t be served n the defendant. Smetimes the curt will serve the claim fr yu, but ften yur slicitr will arrange t serve the papers. If yu receive a claim as the defendant, yu might decide t admit sme r all f the claim, r t deny sme r all f it. There are strict time limits fr deciding what t d and t return the paperwrk. If yu miss thse deadlines, the claimant can ask fr judgement t be made against yu in default. Allcatin Once a claim has been started, the curt is in charge f the timetable f the case and will exert its cntrl thrugh rders telling the parties hw t prepare fr a final hearing. The curt sends ut an allcatin questinnaire t each party invlved. This is usually cmpleted by yur slicitr wh answers questins abut hw much time the case is likely t take and whether it shuld be suspended fr a shrt perid t enable mre time t try and settle the case ut f curt. The curt will then give directins t allcate the case t a track (see belw) and set ut the timetable. Small Claims Track Small claims are usually claims f less than 5,000 where there are n particularly cmplex pints f law. Typical cases might be disputes abut faulty gds r nn payment f bills. In the vast majrity f cases yu will nt be able t recver yur legal fees frm the ther side ther than a very small amunt f fixed csts. Hearings are designed t be as infrmal as pssible. Because f the rules n csts, many peple will elect t handle a small claim themselves withut instructing a slicitr, ther than perhaps fr sme initial advice and t prepare the paperwrk. Fast Track Fast track cases are generally thse that have a value between 5,000 and 25,000 and are whse trials are expected t last fr n mre than ne day. Yu can claim yur csts frm the ther side but there are rules that limit thse csts. Csts are nrmally decided n the day by the trial judge, based n summaries prvided by each side. Multi Track The multi track is reserved fr cases having a value ver 25,000 r whse cmplexity is likely t invlve a trial f mre than ne day. - 4

5 Interim Matters The curt will usually als rder the parties t take varius steps t ensure that everyne is ready fr trial Disclsure Each side will have t undertake a thrugh search fr, and then prduce a cmprehensive list f, all the dcuments (including film, audi and electrnic files) that it either has, r has had and which either supprt its wn, r the ther side s case. Each party then has an pprtunity t see any f the dcuments n the ther side s list. Expert Evidence the curt will rder wh is t be instructed as an expert witness e.g. an accuntant, surveyr, scientist r dctr. Evidence The curt will usually rder that witness statements have t be exchanged with the ther side simultaneusly. This ensures that ne side des nt gain an advantage ver the ther by having sight f the ther s statements befre it hands ver its wn. Applicatins - The parties may need t ask the curt fr varius things t be decided. Fr example the parties may need mre time t cmply with the directins. The parties might als be applying fr an rder t say, freeze the ther side s assets r fr the ther side t make an interim payment f cmpensatin. Trial If the case cannt be settled, it will end up at a final hearing called a trial. At trial each party is usually represented by a barrister. The barrister s jb is t put all the evidence in frnt f the judge, t crss examine witnesses and t put frward legal argument. At the end f the trail the judge will make an rder. If the rder is t pay mney, the party that has t pay is the judgement debtr. Csts After the curt has made an rder, it will g n t decide what t d abut the legal csts. The general rule is that the winner is entitled t have his r her legal csts paid by the lser. Hwever there are a wide variety f factrs that might affect what happens. Fr example, what ffers had been made t settle the case and hw each side has behaved. The curt can make a decisin n csts there and then in what is knwn as a summary assessment. In mre cmplex matters the curt will usually rder a detailed assessment which takes place after the winning party has submitted an itemised bill. Enfrcement If the ther side des nt cmply with the final rder, yu can return t curt t ask fr an enfrcement rder. Further investigatin may be needed befre investing mre time and mney in pursuing enfrcement t find ut which f the ptins is mst likely t be successful. Sme f the ptins available include - 5

6 Bailiffs A warrant permitting Cunty Curt Bailiffs r High Curt Enfrcement Officers t remve gds belnging t the debtr and sell them at auctin t try and pay ff the judgement. Charging Order if the debtr wns freehld r leasehld prperty, a charging rder will attach t the prperty like a mrtgage and may prevent the prperty being sld unless the judgement is paid. If the debtr still des nt pay it is smetimes pssible t apply fr an rder fr sale f the prperty. Attachment f Earnings if the debtr is emplyed, the debtr s emplyer can be rdered t pay the judgement by taking deductins frm the debtr s wages Third Party Orders these require a third party wh wes mney t the debtr (e.g. usually a bank with which the debtr has an accunt) t pay yu directly. Oral Examinatin the debtr can be made t attend curt t give an accunt f his r her means. Cmmittal if, fr example, the final rder was an injunctin and the ther side des nt cmply, the curt can decide that party is in cntempt f curt and can impse a jail sentence. Disclaimer The abve infrmatin is presented as a general verview f the prcess f civil litigatin in England and Wales as a means f intrducing clients wh may nt be familiar with litigatin t sme f the key prcesses and cncepts invlved. N part shuld be relied upn as legal advice and n liability whatsever will be accepted in breach f cntract, negligence r therwise fr any damage ccasined t any persn, legal r natural, acting r mitting t act in reliance. Neither des anything in the abve dcument frm any part f yur cntract (retainer) with T A Matthews. 6 King Street Herefrd HR4 9BS Tel: Fax: Als: 13a Brad Street Leminster HR6 8TZ Tel: Fax: enquiries@tamatthews.c.uk Ver: 1.1 Jul 09 Steven Llyd T A Matthews - 6