Life Cycle of a Claim – Article Three – The Leading Up To and Aftermath of Trial

Now that court proceedings have commenced and the steps outlined in Article 2 have been taken, you will need to plan and prepare for the lead-up to the Trial, as well as the aftermath. Below are procedural steps that must be considered.

Evidence

For the court to accept a claim, it must be proved on the balance of probabilities. You will adduce evidence to support each of the essential ingredients of your claim. The Defendant will need to adduce evidence to support their defence and to deal with those elements of the claim that they dispute.

The evidence usually comprises:

• Contemporaneous documents (including electronic documents as well as hard copies) intended to prove the issues in dispute.

• Statements from factual witnesses, to tell the story behind the dispute and to fill in any gaps that the documents leave.

• Expert evidence (where appropriate and permitted), to assist the court when the case involves complex technical, academic or foreign law issues.

It is important to consider the evidence that is likely to be required to prove your case and to ensure preservation of the evidence.

Disclosure of documents

The purpose of disclosure is for each party to make available documents which either support or undermine any party's case. This may include documents that are sensitive, confidential or harmful to your case.

Disclosure is often a time-consuming and costly stage in litigation, and it is important to consider disclosure at an early stage. Initially, it will be necessary to identify what documents exist (or may exist) that are or may be relevant to the matters in issue in the case. Where and with whom those documents are or may be located. The estimated cost of searching for and disclosing them. Documents are disclosed by listing them and serving the list on the Defendant. It will be necessary for you to organise and supervise the disclosure search.

You will also be required to sign a disclosure statement in the list of documents, certifying that the duty of disclosure is understood and that, to the best of their knowledge, you have complied with that duty.

The most important point to note at this stage is to preserve all documents that are potentially disclosable, including electronic documents such as emails, voicemails and text messages. Care should also be taken to avoid creating any document that might damage your case and to limit the circulation of existing documents relating to the dispute.

Inspection of documents and privilege

After the parties have exchanged their lists of documents, each party is entitled to inspect the other's disclosed documents. In practice, inspection often takes place by way of exchange of copy documents.

Privilege entitles a party to withhold documents from inspection. ‘Legal advice privilege’ protects confidential communications between a client and the client's lawyer that came into existence for the purpose of giving or receiving legal advice.

‘Litigation privilege’ arises when litigation is contemplated, pending or in existence, and protects communications between a client or the client's lawyer and a third party, provided certain criteria are satisfied.

Without prejudice privilege applies to communications made in a genuine attempt to settle a dispute.

Witness Statements

It would be helpful to identify those individuals who were involved in the events giving rise to the claim. If the claim proceeds, it will be necessary to prepare a written statement of the evidence that each individual intends to give to support the claim. These statements will be sent to the Defendant. We will also receive the Defendant's witness statements.

The time period for exchanging witness statements will be agreed by the parties or ordered by the court at the first CMC.

The court may also give directions identifying the witnesses who may give evidence or limiting the number of witnesses and the issues that may be addressed. The witness statements normally stand as evidence in chief. A witness may be called to trial to be cross-examined on the witness's statement.

Preparation for Trial

The courts are reluctant to postpone a trial date or period that has been fixed without a very good reason. Therefore, although most cases settle, it is important to be properly prepared in case the matter does proceed to trial. Some of the steps required are set out below.

Preparation of Trial Bundles

Trial bundles are files of the statements of case, relevant orders and key evidence that are used by the court and the parties during the trial. Preparing trial bundles is usually the responsibility of the Claimant's solicitors but the court expects co-operation between the parties to try to agree the documents to be included. The task requires significant planning and attention to detail.

Preparation of Skeleton Arguments

Each party will be required to supply the court and the other party with a written skeleton argument, namely a written outline of that party's case and arguments before trial. Skeleton arguments are usually drafted by Counsel.

Trial and Judgment

The length of the trial will depend on the complexity of the legal and factual issues to be resolved and the number of witnesses permitted to give evidence. The trial will be held in public, unless the court has ordered that it may be held in private because it involves matters of a confidential nature and publicity would cause harm or damage.

The trial will be heard by a single judge alone. The judgment may be given immediately after the trial but is often "reserved" to a later date, particularly in complex matters. This means that the parties will not know the judge's decision until sometime after the end of the trial.

Costs

Costs will be reviewed during the judgement for the claim. As discussed above there are fixed recoverable costs for claims up to £100K. If there is multiple issues within a claim and counterclaim for which no party is wholly successful in judgement; and If costs cannot be agreed between the parties;  then there may be the need for an additional costs hearing, in which the judge will determine who is liable for what costs.

Enforcement

Once judgment has been obtained, the judgment debtor should voluntarily pay any amount ordered to be paid. If payment is not made, there are a number of enforcement procedures available to the judgment creditor to enforce payment. Examples include:

• Execution against goods owned by the judgment debtor, where an enforcement officer is commanded to seize and sell a judgment debtor's goods.

• An attachment of earnings order, under which a proportion of the judgment debtor's earnings is deducted by the debtor's employer and paid to the judgment creditor until the judgment debt is paid.

• A charging order over property owned by the judgment debtor.

The appropriate procedure will depend on the circumstances, including the nature and location of the debtor's assets.

Appeals

It is open to the unsuccessful party to apply for permission to appeal a judgment or order. A decision may be appealed only on the basis that it was either wrong or unjust because of a serious procedural, or other irregularity, in the proceedings. The general rule is that notice of an appeal must be filed within 21 days of the judgment or order (this is subject to certain exceptions). If there is an appeal, it may be necessary to apply for a stay of any order or enforcement of the judgment.

If you are considering litigating a matter, or a claim has been issued against you, you should seek legal advice, please contact the commercial litigation team at Forbes Solicitors on 0800 689 0831