Business Disputes – The Litigation Process

Following on from our previous commercial disputes articles on the initial steps to take and how to escalate a dispute, we will now outline the litigation process when pursuing a claim.

Whether you are the party intending on bringing the claim, or are the party ready to defend it, your solicitor will give you guidance on the Court process and what you can expect. It is the nature of litigation that no outcome can be guaranteed and therefore there will always be an element of risk. It is part of a solicitor’s job to help you manage the risk and advise your business at each stage of the process.

Before proceedings are issued, the solicitor will assess the merits of your case and provide an estimate of the likely costs and time it will take to get judgement. Once you have this information it is up to you to decide whether the dispute is worth pursuing. If it is, these are some of the features (based on a general commercial litigation claim) which will be encountered throughout the litigation process:

Pursuing a business dispute through the Courts

Key Features of the litigation process

Claimant perspective

  • Issuing a Claim Form – This is a short document which sets out the basis of the claim. The Particulars of Claim (which sets out the facts on which the claim is based and the remedies you are seeking from the Court) can be issued at the same time as the Claim Form and if not, within fourteen days of service of the Claim Form. The Claim Form must be served within four months of the date of issue (if the Defendant is domiciled in England and Wales).
  • The Claimant usually files a Reply to the Defence, responding to any points raised.

Defendant’s perspective

  • The Defendant has fourteen days to file a Defence or 28 days from the date of acknowledgement of service form if a decision has been taken to defend the claim. This time frame can be extended by agreement between the parties or by Court Order.

Common features of the litigation process for both parties

  • Use of Counsel – It is common practice for specialist counsel to be instructed to assist with drafting statement of case documents and perform advocacy.
  • Timelines – The Courts require strict compliance with the deadlines set out in Civil Procedure Rules or by Court Order and failure to adhere to these can have a serious impact on your claim/defence of a claim. This is why we recommend consulting a solicitor before commencing litigation.
  • Directions Questionnaire – Both parties must complete and submit these forms to Court to give it more information about the case, i.e. number of witnesses, preferred venue for trial, etc. The parties are obliged to try and agree timetabling of the future conduct of the case.
  • The Court will normally list a Case Management Conference (CMC) to discuss the future conduct and timetabling of the case and any other issues specific to the claim. Costs budgets also have to be filed 21 days before the first CMC and if these have not been agreed, then they may be approved by the Judge at this stage.
  • Disclosure/evidence
  • Pre-trial review/preparation – A pre–trial review will usually take place 6 to 8 weeks before the trial date in front of a Judge to ensure there are no outstanding issues and budgets are up to date. It is usually the Claimant’s obligation to prepare trial bundles for the Court, the Defendant and witnesses. The Claimant will prepare the first index for the bundle and will send it to the Defendant for its comments. It is worthwhile trying to agree one trial bundle to submit to the Court and be used during the trial.
  • Trial – the parties will both provide skeleton arguments to the Court before the trial begins. Opening submissions are given on behalf of each party at the start of the trial and then it is usual practice for the Claimant’s counsel to call its evidence (witnesses and expert witnesses). Sometimes judgement will be given on the day or, if the case is complex, judgment will be reserved and provided at a later date.

How Nelsons Can Help

Lynsey Burke is an Associate in our Dispute Resolution team specialising in a wide range of commercial disputes.

If you would like advice in relation to the subjects discussed above, please contact Lynsey or another member of the team in DerbyLeicester or Nottingham on 0800 024 1976 or via our online form.