You may have heard people talking about court proceedings at some point but you might not have a firm idea of what the whole thing actually involves in reality. When it comes to the commercial litigation process, it is broadly the same whether you’re in the County Court for a smaller claim in terms of value, or in the High Court for larger and more complex matters. We’ve put together this guide to serve as a high-level overview of what each stage involves, so that you come away equipped with a grasp of the key components of the court process for business disputes.
Commercial court proceedings: An overview
What happens when your business has to go to court to settle a dispute? Find out the process from our dispute resolution solicitor, Ian Carson, as he explains the key stages, documents and timeframes involved in the court process.
What happens before court proceedings begin?
Before prospective litigants (litigants being the term used for the parties involved in legal action) can start court proceedings, the Civil Procedure Rules (CPR) require a claimant – the person bringing a claim – to set out its case in what’s known as a letter before claim.
The defendant – the party responding to the claim – then has a reasonable period in which to respond, which is usually somewhere in the time frame of 14 to 28 days, depending on the nature of the dispute. This is part of what’s referred to as the pre-action process.
It’s important to highlight that the court expects the parties to explore the possibility of coming to a settlement at the pre-action stage, so that recourse to court proceedings is hopefully not necessary and treated as such as a last resort. The CPR sets out a comprehensive range of Pre-Action Protocols to assist potential litigants with this – these contain valuable guidance and mandatory processes in all kinds of different types of disputes, including ones which involve businesses.
What are the first steps if pre-action discussions fail?
If pre-action discussions don’t bear fruit in terms of a resolution that both parties are satisfied with, litigation is started through the “issue” and “service” of a formal Claim Form by the claimant, which is routinely accompanied by a separate written document known as the Particulars of Claim. These documents in tandem serve the purpose of summarising the claimant’s factual and legal case.
Upon receipt of these documents, the defendant then has at least 28 days in which to serve their Defence – in other words, the document which should set out the response to the Claim Form & Particulars of Claim. Once the claimant has received copies of the Defence, they subsequently have at least 14 days to serve a reply, dealing with any new points that the defendant has raised in their Defence.
What if the defendant refers to a counterclaim?
It may also be that the defendant has served a counterclaim along with their Defence, which would be the case if the defendant believes that the claimant actually owes them money, either as “cancelling out” the full amount claimed or part of it. In these circumstances, the claimant would also address the counterclaim when replying to the Defence.
What happens when the court receives the claimant’s and defendant’s documents?
When the court has received the documents referred to above, it sets out the timetable (commonly referred to as directions) for the rest of the steps to trial. This timetable is designed to ensure that all the evidence is exchanged between the parties in advance of the trial date, so that all parties and the judge have ample time to consider everything involved. It’s worth pointing out that the courts adopt a strict ‘cards on the table’ approach, with a view to there being no surprises in terms of the evidence when the case finally reaches trial: transparency is key. Depending on which court the litigation is proceeding in and the value/complexity of the claim, the level of detail contained in the directions can vary widely.
What is disclosure?
The first evidential stage is called disclosure. This involves the exchange of all relevant documents between the claimant and defendant, with a duty being conferred on each party to perform extensive searches and preserve any evidence that may or may not be helpful to its case. In today’s digital age, this can be an expensive and lengthy task involving the review of many thousands of emails and other documents. However, technology can assist with the process and with the right legal support in place, navigating this seemingly cumbersome exercise can be made easier.
When are witness statements necessary?
Once the parties are armed with all the relevant documentation following completion of the disclosure exercise, each witness then has to provide a written witness statement. Generally, the rules state that a witness can’t give evidence at trial without first providing a written witness statement to the other side and to the court. These statements are exchanged simultaneously between the parties on a date ordered by the court, which will be well in advance of the trial.
Where does expert evidence fit in?
If a dispute involves technical issues (for example, where the valuation of a company is necessary or an evaluation of a defective building is required), the court may see fit to make provision for expert evidence in the directions. Expert reports are drawn up after the exchange of witness statements has taken place, so that the expert(s) has/have all the relevant evidence to provide their opinion – again, any expert reports are exchanged by the parties in advance of the trial.
What happens when the case reaches trial?
When the trial date arrives, the judge will have in front of them the relevant documentary evidence that has been provided throughout the disclosure process, along with the written witness statements and expert reports. Each witness will be cross-examined on the evidence in their witness statement by the other side’s barrister. The sequence of events is that all of the claimant’s witnesses go first, followed by those speaking on behalf of the defendant. The judge will then hear from any expert and, finally, each barrister will sum up the case of the party they are representing. Finally, the judge will retire to consider his judgment, which may be delivered orally on the final day of the trial or in written form approximately four to six weeks later.
How long does the whole process usually take?
This is a difficult question to answer accurately because time frames are dependent upon many factors: the complexity of the case, the availability of judges, courtrooms, solicitors, barristers, the parties themselves and any witnesses and experts. Directions are also commonly delayed if either party makes an application throughout the course of the timetable (for example, to request extra time to comply with a direction), so flexibility and patience are crucial attributes to have when it comes to the litigation process. As an extremely broad ballpark estimation, taking into account the size and nature of the claim, six to twelve months from start to finish is a rough time frame to have in mind.