LITIGATION - Part 1
Litigation is the word used for the process of resolving a dispute through the courts.
There are different processes that the courts use according to the value and the complexity of the claim. Initially, all claims begin with a person who wishes to bring a claim because they feel that some civil wrong has been committed against them by a person who has done something wrong - intentionally or otherwise.
The person ‘wronged’ in some way is known as a claimant . The person who has done wrong is a potential defendant – a person who will defend themselves against the claim brought to the courts by the claimant. The Claimant and defendant will become parties to proceedings if the claim does reach the courts.
The following relates only to civil disputes and not to the criminal judicial system.
So what do you need to do first if you find yourself in a dispute with another?
There are very clear steps laid out by the Pre-action Protocols (see separate Guide) and the Civil Procedure Rules. These rules determine the steps that an individual should take, from the outset to the rules that the judges follow in the event of failure to comply with these rules. Of course, you should always consult a qualified legal practitioner for complex matters.
You have a problem which may require the involvement of the court service in some way to seek a resolution or remedy. The award of compensatory money is called damages.
Before this can be dealt with at court, you must ensure that you have complied with any pre-action steps laid out within the Pre-action Protocols.
All the forms and information you need in respect of any civil court proceedings can be found via the following link: http://www.justice.gov.uk/courts/procedure-rules/civil
Depending upon what your issue is, you need to follow the correct protocol. In the majority of cases, it is clear which protocol should be followed. Where there is no definitive pre-action protocol, you should follow the pre-action conduct steps (see separate Guide).
When considering civil litigation, you should be aware of ‘The Overriding Objective’ as found in the Civil Procedure Rules. This is designed to guide civil courts in everything they do. It states that the courts must deal with cases justly, in a way which is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party. For further information, see the following: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01 .
What does this mean to a potential party to proceedings?
It means that the court will ensure that any litigation cannot spiral out of control in relation to costs and the issues to be decided. It means that parties will be encouraged to settle disputes through alternative means such a mediation, arbitration and conciliation. The courts will ensure that any claim is dealt with in a proportionate manner and that court time is not wasted.
It also means that there is a duty upon legal representatives and upon a person involved in a dispute to act in accordance with the Overriding Objective at all times.
Any person who is contemplating seeking the advice of a solicitor and resolving their issues through litigating in court should be aware that very few cases proceed to trial.
It is no great leap to realise, therefore, that around 97% of claims settle prior to a hearing after having been issued at court. To issue at court simply means to fill in a claim form and file it at court to begin the process of litigation officially. This suggests that adhering to and abiding by the principles of the Overriding Objective will usually result in a settlement out of court achieved through alternative dispute resolution.
Before issue at court, there is a large amount of pre-action work which aims to identify the issue/problem, collate information and documents and place the parties in a position to know whether or not litigating through the courts is a sensible idea.
Advice should be sought from a qualified legal professional who can advise on the best way forward in any matter which may proceed to court.
Lecturer in Civil Litigation
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.
Published on 14th January 2015
(Last updated 28th March 2018)