the court system
This note is not intended to be a definitive guide to the law, but merely a short description of how the Courts work. For further information contact David Vaughan-Birch.
the different kinds of Court
There two separate but related types of civil Court-the High Court and the County Court. There is now little difference between the two, although some types of claim are specifically allocated to a particular Court-for example mortgage repossessions are always dealt with in the County Court.
the rules
The rules of the civil Court system are contained in the Civil Procedure Rules ("CPR"), which are available on line at the Court Service Website (a link to this is on the links page). These rules regulate the Court's procedure; they do not contain the law that must be applied to each particular case. The CPR also deals with issues such as costs, and the way in which appeals must be dealt with. The intention of the CPR is to ensure that cases are dealt with fairly, expeditiously, and as cost-effectively as possible. This is called the "overriding objective". It is the duty of the parties to assist the Court in meeting this objective. Parties that do not assist the Court in doing so-by delaying, for instance-may be punished by costs being awarded against them, or their claims or defences being struck out. It is very important therefore to keep to any timetable laid down by the Court.
A result of the effort to reduce costs is the use of witness statements instead of evidence being given orally. Although the opposition is still entitled to ask questions in cross-examination, it is very important that the witness statements contain all of the evidence that is relevant to the claim or the defence.
judges
Day-to-day procedural issues are dealt with by District Judges in their private rooms, known as Chambers. These hearings take place in private, and are normally attended by solicitors rather than barristers. They may even be dealt with on the telephone. District Judges have wide case management powers under the CPR, with the intention of meeting the overriding objective. Circuit Judges or Recorders usually conduct trials, although some District Judges also have the authority to hear fast track trials.
how claims are started
the pre-action protocol
In some types of case the CPR requires the Claimant (as the party bringing the claim is known) to follow a procedure before a claim is issued from the Court. This is known as a "pre-action protocol". Essentially this requires the Claimant to write to the proposed Defendant setting out the claim in detail, and allows a period of time for the proposed Defendant to respond. In highly complex claims such as building disputes the pre-action protocol provides for a meeting to take place after the exchange of these letters to try to identify the issues that the parties agree and disagree upon. Sometimes experts are also involved at this stage.
issuing proceedings
A claim begins by the claimant sending to the Court a claim form (identifying the parties, their addresses, the type of the claim and the Court fee), and also the particulars of claim. The particulars of claim is a document which sets out precisely what the claim is about, and what the Claimant is asking the Court to do-usually to give judgment for a sum of money, but may be possession of a property for instance. The Court will need a copy for itself and one for each Defendant, and one for the Court to seal and return to the Claimant. The CPR also specifies the various forms that are required.
The Court will also require a Court fee when a claim is issued, and the amount depends on the amount of the claim. Information about the fees payable is available on the Court Service Website, as well as many of the forms that the CPR requires. Court fees can be paid in cash or by cheque made payable to "HMCS" (Her Majesty's Court Service).
The Court serves the claim form and the particulars of claim by post on the defendant, together with a "response pack". This contains a number of standard forms, which gives the Defendant a number of choices as to how he or she deals with the claim; they can admit it all, admit part of the claim and defend the rest, or defend the whole of it.
If the Defendant is going to defend some or the whole of the claim, time begins to run. Either a defence or an acknowledgement of service must be filed with the Court within 14 days of receiving the claim form. If an acknowledgement of service is filed, the Defendant then has 28 days from service of the claim to file a defence.
allocation
When the Court receives a defence it will send a copy to the Claimant, and it will also send to both parties an "allocation questionnaire". This document requests information from the parties that will help the Court determine how the claim should be managed.
The CPR divides claims into 3 so-called "tracks", depending on a number of factors that are considered by the District Judge when the Court receives a defence from the Defendant. Principally the Court considers the value of the claim; if it is less than £5,000, the Court will normally allocate the claim to the small claims track; if between £5000 and £25,000 the fast track, and over £50,000 the multi-track. However the Court also considers the complexity of the case-for instance whether experts are going to be needed. It is possible that a claim under £5,000 is put into the fast track for instance. The Claimant must pay an allocation fee of £80 to the Court at this stage, unless the Court assigns the claim to the small claims track.
The allocation questionnaire asks the parties to tell the Court about any dates that they and any witnesses or experts cannot attend. A trial date may be set very early on in the case, and may be difficult or impossible to move.
The Court will also decide which Court should deal with the proceedings; if a claim is brought against an individual it will normally transfer the proceedings to their nearest County Court. If the Defendant is a company then the Court will decide where the most convenient place for the trial will be-depending on the location of witnesses for instance.
the small claims track
Claims in this track are dealt with quickly and as cheaply as possible, and without the parties having legal representation. The Court does not award costs to the winner, apart from the issue fee (unless the Defendant has behaved unreasonably). If the Court decides that the claim is suitable for this track it will send the parties a short list of directions, including a hearing date. It will also require the parties to exchange a bundle of relevant documents, and also to exchange witness statements. It is best to number each page of these bundles, so that they can be referred to easily at the hearing. The hearing itself will take place in the District Judge's chambers, and normally the District Judge will give judgment (in legal proceedings it is spelled with one "e") at the end of the hearing. There are more details about the small claims system here.
the fast track
Cases in this track are also given directions after the parties have submitted the allocation questionnaires. The Court sets a timetable when the parties are to comply with each direction, and allocates a "trial window" of a week or so when the case will be tried. This is normally 6 months or so away, and as the trial can only last 1 day cases which will require more time but are still less than £50,000 in value will be allocated to the multi-track.
The directions will require the parties to prepare for the trial by dealing with the following issues:
- Disclosure of documents (usually 14 days after the directions order). The parties exchange lists of these documents, and each party is obliged to disclose all documents which are relevant, whether or not they favour the party disclosing them. Failure to do so may result in heavy costs penalties, or even the case being struck out. The obligation is continuing, so if documents later come to light they must be disclosed immediately.
- Exchange of documents (normally 14 days from disclosure). Each party is entitled to copies of documents from the other side's disclosure list, on payment of reasonable copying charges.
- Witness statements from all relevant parties (normally 14 days from service of the disclosure lists). These must be in a particular form and must also contain a "statement of truth".
- Expert reports (normally 56 days from service of witness statements, to allow the parties time to agree the expert, to instruct him, and for the report to be prepared). The Court will only allow expert reports to be used if it thinks it necessary, and will not usually allow their evidence to be given orally at the trial. Instead the Court will require the parties to use a single expert jointly appointed by both, and each side will be bound by the expert's opinion. The expert's fees are met jointly.
The Court will send out a listing questionnaire shortly before the trial window, which requests information about any further directions that the parties need to get the case ready for trial. The Claimant has to pay a further fee at this stage. Once the Court receives the listing questionnaires, it will set a date for the trial within the trial window, and also inform the parties where it will take place; this may not be the Court dealing with the case, as it depends on where a Judge and Courtroom are available. The parties may only get a few days notice of the trial, so it is very important to keep the Court informed of dates that are inconvenient for the parties or their witnesses. At the end of the hearing the Judge will give judgment and also award and assess the costs of the winner. Costs are limited to £750 for the trial itself, together with a "reasonable amount" for the preparation costs and disbursements.
the multi-track
Multi-track trials are now relatively unusual. They are restricted to complex high-value cases such as building disputes and severe personal injury claims. The directions that the Court will give are similar to the fast-track directions, but tend to be much more extensive to ensure that the case is presented at the eventual trial as efficiently as possible. The Court will usually permit the parties to use their own experts, and for them to give oral evidence at the trial.
Unlike fast-track trials, no trial window is set at the beginning of the case. Instead, the Court will set a date for a listing questionnaire to be sent out to the parties, which requests information about the progress of the case Trials themselves may last many days, and judgment is usually reserved. When the Judge has had an opportunity to consider the evidence and write his judgment he will set a date for it to be read out in Court, and will invite the parties' representatives to make submissions on matters such as costs.
specialist Courts
Some types of case are assigned to specialist Courts, which have particular jurisdictions. Examples of these include the Mercantile Courts, the Company Court, and the Technology and Construction Court. Many of these specialist Courts are in London, and each have particular requirements that are outside the scope of this note.
applications to the Court
It may be necessary to ask the Court for specific orders from time to time-for instance, if the opponent has failed to comply with a direction. The request is made by application, which summarises the reason for the request and the order sought; the cost is £60 normally. It is possible to ask the Court to strike out a defence on the ground that it cannot succeed at trial-known as an application for summary judgment. If successful this type of application can result in a judgment against the Defendant in a very short time after the defence has been filed, although often the Court does not have time to list the application for several weeks. The application is served on the other side, and normally solicitors would appear at the hearing without the parties attending. In very obvious cases the District Judge can decide that a defence cannot succeed when he allocates the case - that is, without the Claimant even asking for summary judgment.
experts
Experts have a duty to the Court to report truthfully the entirety of their opinion, and this duty over-rides their duty to the party instructing them. The expert's report must contain a declaration to that effect, in order to comply with the requirements of the CPR. Experts may be expensive, particularly if they are to give evidence at the trial; it is for this reason that fast-track restricts expert evidence to a single expert and written evidence.
barristers
Barristers (or "Counsel" as they are often called) are used in a number of ways, depending on the type of case. In simple fast-track cases their involvement may only come in dealing with the trial itself The Court will not normally award the costs of both Counsel and solicitor attending a trial. As barristers are paid a fixed fee for their attendance at a trial, it is usually cheaper than using a solicitor who will charge on an hourly rate.
Barristers specialise in certain areas, and for more complex cases their involvement may come at the outset of a case for advice before proceedings are issued. They may also be used to draft legal documents such as the particulars of claim and defences when appropriate.
costs
Litigation can be extremely expensive, especially if the case is complex and involves barristers and experts. Normally the "winner" of a case is awarded the legal costs, but this does not necessarily follow. The Court has very wide powers to deal with the costs of a case in any way it feels is appropriate. Costs may also be ordered during the progress of the case if any applications have been made. The usual order is for the loser to pay the winners reasonable costs, to be assessed by the Court if no agreement can be reached.
In fast track cases the Court performs the assessment at the end of the trial. In multi-track cases a schedule of the costs is sent to the loser to try to reach agreement, and if this is not possible then a costs draftsman prepares a bill of costs for assessment by the Court. Both the costs draftsman and the Court charge fees.
The CPR encourages the parties to negotiate, but ultimately the Court may be requested to assess the bill. The Court has to decide two issues;
- Whether it is reasonable for the loser to pay for the work charged for; and
- Whether the hourly rate charged by the solicitor is reasonable.
The Court will not require the loser to pay the winner if he or she has behaved unreasonably, by for instance telephoning or writing to his or her solicitor more often than is necessary to progress the case. Nor will the assessing Court regard a senior solicitor dealing with a simple case as being reasonable. Each Court area sets standard rates for solicitors of different levels of experience, and it may award a lower rate than is claimed in such a case. Similar principles apply when the Court assesses the amount claimed for barristers' and experts' costs.
The Court may decide that the amount the loser must pay in costs is less than the winner has paid to his legal team. As the Court tends to be conservative when it assesses costs, the loser is often ordered to pay only 75% or so of the winner's costs. There is a more detailed explanation about costs here.
appealing a decision
It is possible to appeal from judicial decisions, but to do so is usually expensive. It is necessary to show that a Judge's or District Judge's judgment was either wrong about the law that applied, or that the Judge made a mistake about the facts of the case which is relevant to the decision that was made. It is much more difficult to appeal on the ground of a factual error, as the appeal Court will normally regard the Judge that heard the evidence as being best placed to decide.
Time limits apply when appealing, and these tend to be short (usually 14 days). Depending on what kind of decision is appealed the Court that hears the appeal may be a Judge of the County Court, the High Court, or the Court of Appeal.
enforcement
The Court does not enforce judgments itself; the winner or judgment creditor must do so. There is a large number of procedures available depending on what is likely to be most cost-effective, as all involve further legal costs to a greater or lesser extent. The debtor can also ask the Court for time to pay a judgment, although a company cannot do so. Common methods of enforcement are;
- Bailiffs. Under £5,000 the County Court bailiffs are used. Over £5,000 the case will be transferred to the High Court, and the High Court sheriff used. Bailiffs have the power to seize goods under a judgment, and sell them if a judgment is not paid.
- Attachment of earnings orders. If the debtor is working, the Court can order that a certain amount of the debtor's wages is paid to the creditor each month.
- Charging orders. If the judgment debtor owns property, the Court can be asked to grant a charging order (which is rather like a mortgage) which can then be registered at the Land Registry. If the debtor wishes to sell the property the judgment debt must be paid first, so securing the debt. It is also possible to request the Court to sell the charged property.
- Freezing orders. Not strictly a method of enforcement, but if the debtor is trying to move money out of an account-for instance following the sale of a property-the Court can order that the debtor's bank accounts be frozen up to the amount of the claim. A freezing order can also be applied to someone else's account containing the debtor's money, such as a solicitor's client account following the sale of a property. The remedy is expensive but if there is evidence of funds being available it is usually effective.
- Statutory demands. This is the precursor to a bankruptcy petition (if the debtor is an individual) or a winding-up order (if a company). It is served giving the debtor 21 days to pay. The advantage of these two procedures is that the service of the statutory demand is quick and cheap, and is often effective if the debtor has the money to pay it. However, if the demand does not produce payment it will be necessary to consider a bankruptcy or winding up petition.
- Bankruptcy/winding up. If a statutory demand is not satisfied then the next step is to present a petition for bankruptcy or winding up, as appropriate. The Court fee and deposit is quite expensive, but the hearing of the petition is usually relatively quick (about 8 weeks). If an order is made, then statute prescribes a list of the creditors who are paid out first; a judgment debt would rank last, with any other unsecured creditors.