Neeta Desor (Partner)
Marilyn Willows (Partner)
Generally such matters fall into two categories. One is based on a contract being an agreement between two or more parties and the other is based on a civil wrong caused by one party to another deliberately or negligently. The range of disputes based on contract can vary from the relatively minor case of the purchase of defective items such as an electric kettle to a multi million pound claim arising as a result of penalty clauses in a building contract. Civil wrongs include cases of personal injury and damage to property and reputation.
If you are involved in a dispute with another individual or company we can advise you on your chances of success and the possible value of your claim. We can negotiate on your behalf and if necessary commence or defend proceedings which, according to the subject matter and the amount of the claim, will be dealt with in either the County Court or the High Court.
The purpose of this guide is to help you decide what to do when you have been served with Civil Court proceedings.
You must think and act quickly: doing nothing, or leaving things to the last minute, runs the risk of judgement being entered against you and greater expense later. Be ready to complete the form of 'Acknowledgement of Service' and send it to the Court within 14 days of receipt. You have only 28 days from the date of service of the claim forms to file a defence and it may take this time to prepare it properly. Take a copy of the claim form / particulars of claim / statement of case. (basically, the form that contains details of the claim against you). Read it carefully and note the points, particularly any facts, with which you agree or disagree. Assemble any documents, which have a bearing on the case and put them in date order. These simple steps save time and expense.
If the claim is valued at more than £5,000, and the other party (the claimant) is legally represented and / or resourceful, the chances are that you will need an experienced litigation solicitor to act for you. It may be possible to agree a fixed fee for the preparation, filing and service of a defence, which may then enable you to negotiate with the claimant from a 'position of strength'. A well-prepared defence may buy you more time and make the claimant think twice before proceeding further.
The purpose of these notes is to help guide you when contemplating litigation against another party. Civil litigation tends to be an uncertain and costly process and should be your last resort.
Questions to Ask Yourself
Resolution by other means: What is the issue or problem that you think it can resolve? Have you considered the alternatives? Are you able to speak with the person or deal with the organisation concerned amicably? Is someone else able to do so on your behalf (a neutral third party, for example or a legal advisor)?
The size of the claim:
What is the scale of the issue or problem? If it concerns money and is worth less than £5,000, it may be uneconomic to hire a litigation solicitor to act for you throughout, for the fees involved could quickly eat into the proceeds of your claim even if it succeeded. If your claim is not about money but the protection of your property or business, or if you are unsure how to place a value on the claim, ask an experienced legal advisor for guidance.
The position of the other party:
Is the other party worth suing? Are you sure that you have their address and that you can serve them with Court papers? (Opponents who use only post-box addresses, or who insist on communicating over the telephone and not in writing, can be especially difficult.) Have they are litigation 'track record' and do they know how to 'play the system’? (for a small fee you can find out whether they already have any judgements recorded against them) Have they got the money, or the ability to get it (for example, from the equity in a property that you are sure they own), to satisfy any judgement that you are able to obtain?
What is the evidence for your claim? You may feel sure of what happened in your case, but its success may depend upon proving that to a Judge who may hear a very different account of the facts, of the evidence to prove them and of the relevant law. Generally speaking, it is harder to prove a claim that turns on one person's word against another and few, if any, supporting documents. It may also be hard to prove a claim that involves another person's state of mind: for example, that he or she committed the act of which you complain, knowing it to be harmful. Remember too that any witnesses you have in mind may not be prepared to give a signed statement or to take the time and trouble later on to appear in Court for you.
Whether or not you instruct a litigation solicitor, you will need to gather information and documents at an early stage and be ready to exchange it with the other party. Your case may be jeopardised by the late submission of relevant information, and it is unwise to seek to conceal it or, worse, destroy it.
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