Guide to litigation: what happens when a case goes to court?
17th February 2012
Being involved in litigation can be a daunting time for the parties. In this Guide we provide a general overview of the key stages that a typical civil case may go through from proceedings being commenced through to the case going to trial.
Stage 1: Commencing a claim
In most cases the parties should take steps to try and resolve their dispute before a claim is commenced at court. Once those steps have been followed then a claim may proceed at court by issuing proceedings and paying the appropriate court fee. A claim is issued by lodging with the Court the claim form and particulars of claim, setting out the Claimant’s case. These documents must be served on the Defendant within four months of the claim being issued.
The defendant usually has 14 days to acknowledge receipt of the claim form and particulars of claim. If they file an acknowledgment they will have 28 days in which to file and serve a defence.
Stage 2: Allocation & Directions
Shortly after the defence has been filed and served the parties will need to complete Allocation Questionnaires and send these to the Court. The information in the Allocation Questionnaires will enable the judge to decide how the court’s resources should be used by allocating the claim to either the Small Claims Track; the Fast Track or the Multi Track. The Judge will also make an order setting out what steps need to be followed to bring the case to trial; these are known as Directions.
In more complex cases the Court may list a case management hearing to take place in order to consider what the issues in dispute are and consequently what Directions should be made.
Stage 3: Disclosure
The Court will order the parties to disclose relevant documents to each other at the disclosure stage. This usually takes place around 4 weeks after the case has been allocated.
Each party must carry out a thorough search of all documents that are relevant to the Claim, even if those documents are harmful to that party’s case. The search should include electronic documents. This is a very important part of the litigation process and there is a high duty on each side to ensure that it is carried out properly. There may be sanctions against a party who does not carry out this process properly and therefore legal advice should be obtained.
Once the search has been carried out then each party should set out on a List of Documents the description of all documents that are relevant to the claim that are either in the party’s possession or control or were once in that party’s possession or control. The List must be supported by a signed Statement of Truth.
Each party usually has 7 days from being served with the List of Documents to ask to inspect those documents referred to.
Stage 4: Witness Statements
About 6 weeks after disclosure has been completed, the parties will usually exchange witness statements. These statements should set out the facts as the witness honestly believes them. The statement is the evidence-in-chief of that witness. A party cannot usually call a witness to trial to give evidence unless their statement has been disclosed to the other side at the appropriate time.
The statement will need to be signed with a supporting statement of truth.
Stage 5: Trial
Preparing for Trial
Each party will need to complete and lodge a pre-trial checklist with the Court. The pre-trial checklist will confirm whether all Directions have been complied with and whether further Directions are required. It will also confirm the availability of witnesses and legal representatives which will enable the court to set a trial date, if it has not already done so. An estimate of costs and trial timetable are usually included within the checklist. A case summary may also need to be prepared.
If a barrister is instructed to represent you at the trial then a brief to counsel will need to be prepared. It may also be necessary to have a number of case discussions with counsel, known as “conferences”.
Between 3 – 7 days before the trial date the Claimant will need to file and serve a trial bundle. The trial bundle will contain key documents such as the claim form, particulars of claim, defence, disclosure documents with List of Documents, witness statements and court orders. The content of the bundle should be agreed with the other side wherever possible.
Depending on a number of factors such as the complexity of the case and whether Directions have been complied with on time, the trial of the matter will usually take place about 9 months after the case has been allocated. The duration of the trial also depends on a number of factors, such as the number of witnesses being called. Usually small claims track cases are listed for a half day trial; a fast track trial case may be listed for one day. A multi track case may be listed for a number of days or even weeks.
At the trial the judge will hear submissions (i.e. legal arguments) from both sides and witnesses will be called to give evidence.
At the end of the trial the judge will make a judgment. In some cases, usually those which involve complex issues, the judge will reserve judgment until a later date. The judge will also deal with the issue of costs at this stage.