Claims rarely go straight to court, because parties are encouraged to adopt Alternative Dispute Resolution (ADR) methods of resolving their disputes, such as negotiation and mediation.  Such methods don’t incur the expense and time of court proceedings and are often, therefore, more attractive to everyone involved.

The courts use rules called the Civil Procedure Rules and there is a Pre-Action Protocol, which parties are expected to follow before issuing court proceedings, not only to reduce costs but also to make sure they do their best to resolve the issue before resorting to court action.

Step one of the claim process

The first step in the Pre-Action Protocol is for the claimant (the person making the claim) or their solicitors to send the defendant (the person at fault) a letter, which sets out the details of the claim, a summary of the facts and what the claimant wants from the defendant. The defendant must respond in a reasonable time: usually 14 days in a straightforward case.

The defendant’s reply should say whether they accept or deny liability. If they deny liability, they need to give their reasons together with an explanation as to which parts of the claims they are disputing.  Should the defendant want to make a claim against the claimant – known as a counter-claim – they must provide all relevant details at this time.  The parties should also disclose key documents relating to the claim, for example, a contract of sale.  

If the parties cannot come to an agreement during this process, they should consider the use of negotiation or mediation.

Step two of the claim process

If the matter still cannot be settled, the claimant can issue court proceedings.  The type of court that will hear the case, and the fee payable, depends on the dispute and the amounts involved.  However, even whilst the trial is underway the parties are encouraged to continue to negotiate in an attempt to resolve the matter.

If the matter goes to court, the claimant or their solicitor will send a claim form to the court, together with details of their claim, which the court will serve on the defendant.  The form and the details of the claim don’t have to be done at the same time, but the details must follow within 14 days.

The defendant then has three options:

1. admit liability,
2. file a defence within 14 days, or
3. within 14 days file an acknowledgement that he has received the claim form, which will give him a further 28 days to file his defence.

If the defendant admits liability the claimant will receive a County Court Judgment against the defendant.  The same applies if the claimant fails to reply to the claim within the timescales allowed.

What happens if the defendant files for defence within a claim?

However, if the defendant files a defence, the case is then allocated to the small claims track, the fast track or the multi-track.  The small claims track is used for claims with a financial value up to £10,000, or £1,000 for personal injury claims.  Fast track is used for claims up to £25,000 and where the trial is likely to last no longer than one day.  Multi-track is used for claims over £25,000.

The court will ask both the claimant and the defendant to complete a directions questionnaire.  Their answers are used to check that the case has been allocated to the correct track.  The questionnaire assesses the number of experts that will give evidence or submit reports, the number of witnesses and the likely costs and length of the trial.  The parties are also encouraged to agree a timeline for completion of certain tasks, such as exchanging expert reports or witness statements.

The English legal system promotes a ‘cards on the table’ approach to litigation, which means that both parties have to disclose information at an early stage.  If the case is allocated to the small claims or fast track, there are standard directions with which each party must comply.  If the case is allocated to the multi-track, there will be a case management conference where the directions will be agreed.

In cases allocated to fast or multi-track, both parties will have to complete a pre-trial checklist.

At the trial the judge will consider all the evidence, make a decision and award costs.  As a general rule, the losing party pays the successful party’s costs, but the conduct and compliance with Pre-Action Protocol and CPR Rules will be taken into account!

If you have any questions on anything mentioned within this article, please give Kevin Sullivan a call on 01206 217376.