The court system and lawyers
The English civil court system is divided between the High Court and the County Courts.
The legal profession is split between barristers (often referred to as “counsel”) and solicitors. The term lawyer simply means a person who practices law.
Barristers are specialist advocates who have the right to appear in the higher courts on most substantive hearings. They also draft documents for court and give opinions on particular areas of the law in which they are experts. Barristers do not generally deal with clients direct. Senior barristers may be appointed as Queen’s Counsel. All other barristers are known as juniors. Barristers are self-employed but operate together through chambers for administrative and financial reasons.
Solicitors have day to day contact with clients and have the main responsibility for handling the case. Solicitors may also appear as advocates in the higher courts provided they are qualified to do so.
The key steps in the path of a claim:
Pre –action period
Before court proceedings are issued the parties are required to act reasonably in exchanging information and documents in an attempt to settle their dispute without recourse to litigation. Sanctions may be imposed against parties who fail to comply with these requirements. In addition there are a number of “pre-action protocols”’, setting out the procedure which parties are expected to follow in certain categories of dispute, for example, in personal injury and professional negligence disputes.
Issuing court proceedings
Proceedings are commenced when the Claimant “issues” a Claim Form. When the Claim Form has been sealed by the Court and is sent to the Defendant it must be accompanied by the Particulars of Claim. The Claim Form and the Particulars of Claim are critical documents and they must set out properly a summary of the basic facts (but not the evidence) of the claim against the Defendant. A Claimant will have to pay a fee to issue a Claim Form, the amount of which depends upon the value and nature of the claim.
The Claim Form and Particulars of Claim have to be served upon the Defendant in accordance within the prescribed time frames. When a Defendant is sent the court proceedings, they have to indicate whether they accept the claim or intend to defend it. Again this must be done within prescribed time limits. If the Defendant wishes to defend the claim, he must serve a Defence (including a Counterclaim if there is one) normally within 28 days of receiving the Claim Form. The Defence is also a critical document because if the Defence is regarded as weak, the Claimant can seek to strike out the Defence. A failure to serve a Defence will allow the Claimant to enter Judgment in default against the Defendant.
Further court documents may be served and filed at court in order to clarify each party’s position. All court documents will be accompanied by a statement of truth verifying the truth of the information contained in the document.
Once a Defence has been filed the court will set down a timetable to progress the matter to trial. All cases are actively managed by the courts to ensure that they are proceeded properly and timeously, by helping the parties to identify the issues at an early stage and fix timetables for the disclosure and exchange of evidence and the trial date itself. The courts will also consider whether the likely benefits of taking a particular step will justify the cost. Another part of case management by the courts is to try and encourage the parties to settle their disputes without the need for a trial with reference to alternative dispute resolution procedures (ADR) such as mediation.
Disclosure of documents
A party is required to disclose to the other party all the relevant documents in its possession. This may include confidential documents if they are relevant to the dispute. Certain documents that are otherwise disclosable may properly be withheld from the other party on the ground of “legal professional privilege”. Documents will include anything in which information of any description is recorded, including information held in an electronic format. Disclosure is a vital stage of the proceedings as the weakness of a party’s position often becomes apparent from the disclosed documents. Proceedings can settle as a result of disclosure.
If a party is to adduce oral evidence at trial then each party should disclose the evidence in a written format. Again this can be a vital stage in the proceedings as a party’s position will become more apparent from the evidence contained within the witness statements and settlement could result.
A witness statement should set out the facts to which the witness will testify at trial. It must be certified to be true by the witness. Witness statements are normally exchanged at least several weeks prior to trial. At the trial the witness may with the court’s permission amplify his witness statement, and give evidence in relation to new matters which have arisen. All witnesses may be cross-examined by the other party’s lawyer.
If a party needs to rely on the opinion evidence of an expert on a particular issue, the court’s permission will be required. An expert witness will be independent and has an overriding duty to the court and not to the party instructing him. There can be more than one expert witness per case if there are several areas of expertise to address. Alternatively, a court can order for the parties to share the services of an expert on a particular issue. An expert witness may be involved in court proceedings and may be called to give evidence. There are strict rules about the content and format of an expert report.
There is generally no right to trial by jury. The trial will be determined by a single judge alone.
English trials are predominantly oral, requiring each party to make oral submissions and rely upon the evidence of witnesses called to trial. However, before the start of the trial, the trial judge will generally have read the court documents, witness statements, experts’ reports and skeleton arguments drafted by counsel. The judge does not make his own assessments as such but may require a party to clarify his position. In summary the trial comprises of each party’s advocate stating their position and calling upon the evidence of the witnesses and experts that they seek to rely on; these witnesses may be cross-examined by the opposing advocate. The trial will end with the advocates summing up the evidence and making submissions on the relevant law.
Judgment may only be given immediately after the trial or, in more complicated cases, it will be reserved until a later date when the judge has reflected on the issues. If a party seeks to appeal a Judgment, the appealing party must obtain the permission of the court; permission will only be given in limited circumstances.
Although it is at the discretion of the court, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but any breach of the court timetable may result in a penalty.
It is possible for Claimants and Defendants to enter into no win, no fee agreements with their lawyers.
Enforcement of Judgment
When Judgment is obtained, the Defendant will usually make payment voluntarily. If this does not happen there are various enforcement procedures available to the Claimant, for example, arranging for the Defendant’s assets to be seized and sold, or obtaining a charging order over property owned by the Defendant. There is also the option of forcing the Defendant into insolvency if the Judgment sum is not met.
Strategic issues and offers to settle
There are a number of strategic measures that may help the resolution of a case including offers to settle. Offers to settle a dispute can be made at any time in a dispute and the rules make provision to encourage parties to settle by penalising parties who unreasonably refuse to mediate or who fail to accept an offer made by the other side and then achieve a less successful outcome at trial.