Civil & Commercial Litigation Civil & Commercial Litigation
In all cases we can accept instructions for either the claimant or the defendant (or any other party involved in the proceedings). Protopapas LLP believes in giving positive legal advice tempered with good commercial sense. Where it would be in the client’s best interests, we always aim to resolve a dispute without involving the client in costly and wasteful court proceedings. The courts also strongly recommend the early use of mediation as a means of settling disputes. Please therefore contact us at an early stage. Legal advice can often be a catalyst in resolving disputes at the outset. If however a case does proceed to court we always make sure that it is prepared with the utmost care and attention.
- Litigation & Dispute Resolution:
We can advise you on:
- Breach of Contract
- Commercial Disputes
- Property Disputes
- Boundary Disputes
- Building / Construction Disputes
- Landlord and Tenant Disputes
- Possession Proceedings
- Rent Arrears
- Debt Recovery
- Mis-sold Swap Interest Rate Loans
- Intellectual Property Disputes
- Partnership Disputes
- Professional Negligence
- Wills, Trust and Inheritance Disputes
- Employment Disputes
- Defamation, Libel and Slander
- Insurance claims
- CIVIL LITIGATION
Civil litigation refers to legal action over a wide range of private disputes. It is a recourse in law to allow disagreements that have escalated to be addressed and resolved in the fairest legal way possible.
Among the issues commonly addressed through civil litigation are claims over faulty goods or inadequate services; boundary disputes and other disagreements between neighbours; breach of contract ; professional negligence; contentious probate and Intellectual Property disputes.
Civil litigation cases do not always have to be settled in court, even when a solicitor is contracted. In some cases, matters can be resolved through mediation. This is when a neutral third party is brought in to hear evidence from both sides. The professional mediator can make suggestions as to how the matter can be resolved but in most cases the parties are not obligated to follow the advice and can still proceed to court should they wish.
Arbitration can also be used but unlike with mediation, with arbitration, the external party’s decision must usually be acted upon.
At Protopapas LLP we will always help our clients to address the matter in the simplest way possible, avoiding court if possible by agreeing an out of court settlement. However, when litigation cases do go to court, they are usually heard in the County Court or High Court, depending on the complexity and financial implications of the case. We will always ensure that we gather as much evidence to support your case and that the matter is prepared properly for court. When necessary, we will ensure that a reputable barrister is instructed to appear in court and that we have provided them with all necessary information relating to the case.
Small claims (usually worth less than £10,000) can often be dealt with fairly quickly. Claims worth more than this usually require a longer trial and typically last longer than a day, but exact timescales are hard to pin down due to the complexity of some cases.
- COMMERCIAL LITIGATION
Commercial disputes are issues that arise between one business party and another. They specifically relate to commercial matters and do not involve consumers or individuals.
They may come about over a wide range of issues, including but not limited to: breach of contract i.e. when one party does not uphold their side of the contract by not completing work or carrying it out to an unsatisfactory standard; partnership disputes or disputes between directors or shareholders; intellectual property – disputes over the fair use of intellectual property, such as branding, design or data; franchising; debt recovery; commercial landlord and tenant disputes; finance and mergers and acquisitions.
As with many legal disputes, the best approach is to take preventative action by having solid contracts in place to govern all aspects of business. However, disputes do still sometimes occur and they should be tackled quickly to avoid escalation.
Sometimes commercial disputes can be settled through negotiation, or alternative dispute resolution methods such as mediation or arbitration. It is often in the best interest of both parties to make a commercial decision to negotiate a settlement in order to minimise costs and time spent dealing with a court case. However, in many cases there is no other option than to go to court.
Whether you are looking for ways to protect your business against commercial disputes or are embroiled in a disagreement currently, taking proper, informed legal advice can make matters much simpler.
- THE IMPORTANCE OF DISCLOSURE
Good preparation requires the full participation and co-operation of the client. Probably the most important stage in the litigation process is the disclosure of documents on which each party intends to rely to prove their case (i.e. your evidence); it also includes documents which may be beneficial to the other side.
The Court of Appeal case of Watford Petroleum-v-Interoil LTL 25/9/2003 was on the point of disclosure of documents.
Protopapas LLP acted for Interoil. Watford Petroleum (WP) applied to Mr. Justice Lloyd, then a High Court Judge, for an order that certain documents should not be disclosed by WP until after witness statements had been exchanged, and that even then Interoil should not have the right to file further witness statements in relation to those documents. WP applied to the court without notice to Interoil. They argued that as this was a very hotly contented multimillion pound case, there was a danger that Interoil might manufacture evidence if it receives the documents in question before witness statements are exchanged.
Not placing much weight on the consequences, Mr Justice Lloyd granted this unprecedented order. The following day we applied to have this very unusual order reversed. The Judge said that perhaps he should never have made this order but refused to reverse it. We appealed to the Court of Appeal that reversed the order on the basis that disclosure is an integral part of the litigation procedure and litigants must comply with it no matter the risks involved.
- WITNESS STATEMENTS
During the course of litigation, both parties must submit witness statements. A witness statement is a document written in the words of the witness, giving an account of the evidence he or she has been asked to consider. Witness statements can vary considerably, from stating one single fact to detailing a complicated and lengthy commercial relationship. Therefore, they can vary in length from one line to over a hundred pages. A witness statement may also refer to other documents or objects. If the other document or object is also part of the case, it will be given an exhibit number and described as “Exhibit A”.
There are some formalities which need to be considered when drafting a witness statement and in order to make them acceptable to the court; for example, they must contain a specific form of heading, detailing among other things the court and the parties’ names; they must also state the witness’ age and name. A witness statement must be signed by the witness themselves; it will also contain a declaration from the witness to the effect that the statement they are making is true to the best of their knowledge and belief and that they made the statement knowing that it were tendered in evidence, they would be liable to prosecution if they willfully stated anything that they knew to be false or did not believe to be true.
At Protopapas LLP we know that witnesses and witness statements can make or break a case. That is why we will always use our best efforts to locate as many pertinent witnesses as possible and extract as much information as possible. We also realise that witness statements can be lengthy and complex and that is why will will take our time to draft reader friendly witness statements in the witness’ own words.
If you have any queries regarding Dispute Resolution and Civil Litigation then please contact one of our Solicitors for more advice.
The Civil Procedure Rules (‘CPR’) outline the steps that need to be taken in litigation and other court proceedings; the rules are rather strict and must be complied with by all parties. There are also different rules which apply to different types of litigation. Below, we outline the general procedure used in litigation matters.
- Letter Before Claim
In accordance with the Practice Direction on Pre-Action Conduct and Protocols contained in the CPR, before issuing a claim, the claimant should normally write to the defendant outlining the fact that the claimant is looking to bring a claim. The letter should include information as to the nature of the claim and seek to resolve the matter without the need of court proceedings. This is known as a ‘Letter Before Claim‘.
- Claim Form and Particulars of Claim
The claimant issues proceedings. This is done by serving the defendant with a Claim Form and Particulars of Claim which sets out the details of the claim and facts of the case. Although the Particulars of Claim can be written in the body of the claim form, they usually form a separate document, especially where the matter is complex.
- Acknowledgement of Service
The defendant must then file an Acknowledgement of Service in a form prescribed by the court. The Acknowledgement of Service must usually be filed within 14 days of service of the Claim Form and Particulars of Claim.
- Defence and Counterclaim
The defendant will then usually have a further 14 days in order to serve their Defence which will outline the defendant’s version of events and facts. The defendant must also state whether they admit any or all parts of the claimant’s claim. At the same time, the defendant can also serve a Counterclaim in response to the claimant’s claim. Together, both documents will be called the Defence and Counterclaim.
- Reply to Defence
The claimant can then file and serve a Reply to Defence and if necessary, a Defence to the Counterclaim. The claimant cannot introduce any new issues or claims; they must only reply to the defendant’s defence (and if required counterclaim) which will aim to pinpoint the issues in dispute.
- Directions Questionnaire
Once the above steps have been finalised, the parties must file a Directions Questionnaire. This is a questionnaire to assist the court in deciding on allocation of the case i.e. how it will be handled by the court. The case will be allocated to one of three tracks: the small claims track (lover value and less complicated claims under £10,000); the fast track (claims over £10,000 and under £25,000); and the multi track (for complex claims with a value of £25,000 or more). The parties must also attempt to agree case management directions i.e. the timing of the case including dates when certain documents and forms must be served and the estimated date of the final hearing.
- Costs Budget
As and when required to do so by the court, and in most cases where the claim is going to be or has been allocated to the multi track, both parties will have to prepare and serve a Costs Budget which is prepared in a prescribed form, called Precedent H. The Costs Budget will outline the parties’ budget of anticipated costs of the case. If a party fails to prepare a costs budget or if they do but it is out of time, their costs may not be recoverable from the other party in the event that their claim/defence is successful. The party would be deemed to have filed a Cost Budget consisting only of any applicable court fees, unless the court orders otherwise. Costs Budgets should also be reviewed and updated throughout the matter.
- Case Management Conference
If the parties cannot agree on the case management directions, then the court will hold a Case Management Conference where the parties and the court will discuss the directions and if permitted by the court, any other preliminary issues.
Generally, the next step is for both parties to simultaneously provide to the other the documents upon which they wish to rely on; this is known as Disclosure. The purpose of Disclosure is to make available evidence which either supports or undermines the respective parties’ cases. There are some strict rules which must be followed relating to what documents should and should not be disclosed; for example, documents protected by Legal Professional Privilege do not need to be disclosed. Legal Professional Privileged documents include confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice.
- Witness Statements
Next, both parties must contact all witnesses who are able to give an account of events and prepare Witness Statements which will be signed and served on the other party. If a witness gives a witness statement, the party will intend to rely upon it and the witness will usually be called to appear at the court hearing. At this stage, each party will also identify any expert which they wish to rely upon to give Expert Evidence in their particular field.
Once all above steps have taken place, and assuming there are no other interim applications, no delays or settlements etc. the matter will proceed to the final Hearing. Hearings can last from a few hours to many days and sometimes weeks depending on their complexity and the number of witnesses and experts. Each party will have the opportunity to put forward their case and examine their own witnesses and cross examine the other party’s witnesses. A Barrister who specialises in the area of law which is central to the dispute is normally instructed to appear in court.
- Judgment & Costs
The court must then pass Judgment which takes place either immediately at the end of the Hearing or at a time shortly after. The court will decide whether the claimant’s claim is successful in full or in part or whether the defendant has successfully defended the claim. The court will also asses the damages and any other remedies which are available if the claimant is successful; a separate hearing may take place for this. Finally, the court will decide which party is liable for the payment of Costs. It is usually the losing party which pays the reasonable costs of the successful party, if applicable and in accordance with the Costs Budget.
If permissible, the losing party could then consider whether lodging an Appeal to the final Judgment is suitable.
- Please Note
PLEASE NOTE that the above information is provided as very general guidance on the main steps in litigation proceedings. Litigation proceedings can take various different forms depending on the area of law and can be heard in various courts which all have their own additional rules and timescales. It is not often that a litigation matter is simple and straightforward and as such, there are often delays, complications, interim applications and other factors and procedures which can prolong a matter and considerably increase costs.