What is litigation?

By: Qarrar Somji

Date: 03/12/2021

Being involved in a court case can seem daunting. We take a look at what exactly litigation is and what you can expect from the litigation process.

The process of taking a dispute to court is known as litigation. A court case can take a lengthy time to prepare, with a number of steps to be gone through before the actual hearing.

Litigation can be used for a wide range of disputes, including commercial disputes, employment issues and family law matters. There are a range of different courts and tribunals, depending on the nature of the case to be heard as well as the value of your claim.

The Civil Procedure Rules

The civil litigation process is governed by the Civil Procedure Rules, which were introduced in 1998 and which set out the way in which court cases must be carried out, with the overriding aim of helping courts to deal with cases justly.

The rules include details of case management, the serving of documents on the court and other parties, issues relating to costs, how proceedings are to be initiated and acknowledged and rules in respect of expert evidence.

Types of litigation

Litigation can be civil or criminal. Civil litigation covers a full range of legal disputes, including the following:

Which court is my case going to?

There is a civil court system and a criminal court system. The civil court system is comprised of county courts and the High Court. The county court deals with most smaller cases, including debt recovery, compensation claims, property disputes, Wills disputes and insolvency.

The High Court generally hears more complex cases or those involving large sums of money. The High Court has three sections. The Chancery Division deals with companies as well as tax, trusts, Wills and insolvency. The Queen’s Bench Division deals with other civil matters including personal injury, contract disputes and negligence claims. The Family Division deals with divorce, children and other family law cases.

There are also other specialist courts within the Chancery Division and the Queen’s Bench Division such as the Commercial Court and the Technology and Construction Court.

When cases are appealed, they will be referred to a higher court. This means that High Court cases will be appealed to the Court of Appeal.

The litigation process

The process of bringing a legal claim will follow the stages set out in the Civil Procedure Rules. These require a set number of steps to be gone through so that both parties have the certainty of knowing how the case will proceed and the opportunity to see and challenge evidence.

The pre-action stage

Before a claim is commenced, it is usual to investigate alternative ways of resolving the issue, other than litigation. This could include negotiation between solicitors, mediation or arbitration. For more information, see our article on resolving disputes out of court.

In attempting to deal with the disagreement out of court, the parties will need to engage with each other, generally via their legal representatives. A letter of claim can be sent, setting out the details of the case, and the other party will be expected to respond. If the issue ends up in court, the judge will take into account any failure to act reasonably in attempting to reach an agreement at this stage.

Information can be exchanged and legal advisers will assist in trying to resolve issues without a court hearing. If the matter cannot be satisfactorily dealt with, the next step is for the claimant to issue court proceedings.

Issuing proceedings and filing a defence

The claimant will fill in a claim form to be filed with the court. This will be accompanied by the particulars of the claim setting out the facts of the case. On payment of the court fee, the claim can be filed and will then be served on the defendant.

Read our article on how to reduce the cost of Court fees.

Defence

The defendant will then need to respond with an acknowledgement of service stating whether or not they intend to defend the claim.

If the defendant intends to defend the claim, they have a set period in which to file a defence with the court. In addition, they may decide to file a counterclaim.

If the defendant does not respond to the claim or fails to file a defence within time, then the claimant can ask the court for a judgment in their favour.

The claimant is entitled to file a reply to the defence as well as a defence to the counterclaim if one has been made.

The claim, defence, counterclaim and defence to a counterclaim can also have key documents attached in support.

Objecting to the claim

Occasionally it may be the case that the claim is held to be defective, in which case the defendant can lodge a formal notice with the court objecting to the claim. This could be where the facts outlined in the claim are not a sufficient basis for a legal case, the court does not have jurisdiction to hear the case or the defendant needs more information to be able to defend the claim.

The court may hear an argument concerning the objections or alternatively the claimant may amend the claim.

The pre-trial process

The Civil Procedure Rules set out the required steps in the lead up to the trial. The aim is to focus on the disputed issues, exchange all relevant evidence, explore whether a settlement can be reached and assess the likely length of a trial.

Disclosure of documents is an important part of the process, with both parties required to preserve and exchange evidence so that they can both make an accurate assessment of the strengths and weaknesses of their case.

As well as providing evidence in support of their case, the parties are also obligated to disclose documents that may negatively affect their case. Documentary evidence includes correspondence, electronic records and communications, witness statements and experts’ reports.

Privileged documents, such as communications containing legal advice, do not have to be shared with the other side.

Disclosure can be a lengthy and complex process, often involving a substantial volume of documentation.

Interim applications

During the pre-trial process, it may be necessary for the court to rule on interim issues. This could be granting of an extension of a deadline for disclosure of evidence or the making of an order requiring disclosure of specified documents.

Trial

In preparation for the trial, the parties will prepare a trial bundle of relevant documents to be placed before the court. They will also send the court a basic overview of their case, known as skeleton arguments.

In a larger case, there may be a pre-trial reviewing hearing where the judge will check that all of the pre-trial processes have been completed.

The trial will have been allocated a number of days and a date and both parties need to ensure that any witnesses they plan to call are available to give evidence as needed.

At the trial, opening statements will be put summarising both parties’ positions, then witnesses to the facts of the case and expert witnesses will be heard and cross-examined. Closing speeches are made summarising the key points, often with written closing submissions also put before the court.

Judgment

The judge will generally consider the matter in the days and weeks after the trial, so the judgment is not given immediately. It is generally provided in writing to the parties with an explanation based on the facts of the case.

The judge will also often include an order in respect of the costs of the case, which could direct the losing party to pay the costs of both sides.

Appeal

If one or both of the parties do not agree with the decision of the court, there may be scope to appeal. The court will need to give permission for this and it can only be done on certain grounds, including that an incorrect process was followed or that the decision is wrong or unjust. The court will only give permission to appeal where there is a real chance of the appeal succeeding.

The cost of litigation

Litigation is generally expensive, particularly in a case with substantial amounts of documentary and other evidence. This is one of the main reasons that parties will often attempt to resolve disagreements without recourse to the courts.

Even for the winning party who may have an order for costs in their favour, they may well still find that not all of their costs are paid by the other side and they are still left with a legal bill.

Our litigation team will always ensure that you are fully aware of the costs implication of your case and keep you updated throughout so that you can plan to keep your fees manageable. We offer a range of funding options so that you can choose the plan best suited to your circumstances. These include condition fee agreements, work done under legal expenses insurance and damages-based agreements. In some cases, we can also arrange third-party litigation funding.

For more information about the range of options available, see our information on funding your case.

Specialist litigation solicitors

At Witan Solicitors, we are experienced at both commercial dispute resolution and litigation and civil dispute resolution. We will always do all we can on your behalf to find an acceptable solution to a disagreement without resorting to a court hearing. We have an excellent track record of success in dealing quickly and efficiently with issues on behalf of our clients, meaning litigation can be avoided.

If your case does go to court, you can be sure we will put together a strong case on your behalf and provide you with expert and robust representation.

If you have been involved in a legal dispute and you would like to discuss your options with an expert dispute resolution and litigation lawyer, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, London and Northampton.

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