The legal journey explained – how can you sue someone?
Legal action involves following a set procedure. To avoid the time and costs involved in going through the courts – which can be a very aggressive and adversarial approach - litigation is generally regarded as the last resort.
Using a process called Alternative Dispute Resolution (or ADR) instead can help many people. Where appropriate, a solicitor will use ADR in the first instance before recommending litigation. As well as being successful litigators, many of the solicitors we work with are skilled in the techniques involved in ADR.
What is the Procedure for Litigation?
1. Pre-Action Protocol
2. Issue Proceedings
First, the solicitor completes a claim form along with the Particulars of Claim. These documents set out the details of your claim and need to be filed at court along with the relevant court fee. The court then issues the claim.
3. Acknowledgment of service
The defendant fills in the acknowledgement of service form, which demonstrates that they have received the claim form.
4. Defence and Counterclaim
5. Default Judgement
If the defendant fails to respond in time, the claimant can ask the court to enter a judgement against the defendant without further steps being taken.
6. Request for Further Information
This is the opportunity where the parties involved may ask each other for further information, about the claim or the defence.
7. Summary judgement/strike out
If either party takes the view the other side’s case is without merit, they can apply for summary judgement or strike out, so that the court may decide whether the case is worth continuing in full or in part.
8. File allocation questionnaire
After disclosure, each party is entitled to look at the other party’s relevant documents.
10. Instruct expert
If necessary, an appropriate expert will be brought in to give their opinion on technical elements of the claim.
11. Exchange of witness statements
The parties prepare statements of fact for all their witnesses, which will form the basis of evidence given at trial.
12. Preparation of Skeleton Arguments
A skeleton argument is produced for both the court and the other side.
The length of the trial will depend on a variety of things, including the documents, complexity and witnesses.
At the end of the trial, the judge will either give his judgement there and then or “reserve judgement”: this means that judgement will be given once the judge has had time to (re)consider all the evidence.
Costs are usually decided when judgement is handed down and the judge will decide who should pay the costs and in what sum.
16. Assessment of costs
If the parties can’t agree on the level of costs, there is a separate procedure under which costs are assessed.
After the litigation, if the losing party does not pay the judgment sum and/or costs which the court awarded, the winning party will need to enforce the judgement.
What Happens in a Trial?
A trial can be very daunting for anyone that has never been involved in one before. Criminal and civil proceedings differ in the following ways:
At the trial, each party’s advocate sets out their case and calls on the evidence of the witnesses and experts that they seek to rely on. Prior to the commencement of trial, the judge will have read the court documents, witness statements, experts’ reports and skeleton arguments.
Each party’s barrister makes their spoken submission and draws the judge’s attention to the relevant evidence and law. Any witnesses will usually be cross-examined by the opposing barrister. The trial will end with both parties’ barristers summing up the evidence and making submissions on the relevant law.
If you are a witness in a case then it is important that you communicate what you know. It is possible to ask the opposing barrister to slow down, if you feel that questions are being asked too quickly or you can ask for one question to be asked at a time. If you do not know the answer to a question it is acceptable to say that you do not know or that you do not understand.