Commercial Litigation Process
Commercial Litigation Process
So you have now been offered and accepted an ATE insurance quotation, and your legal dispute is on cover. What happens next?
Your commercial lawyers primary aim is to assist you in resolving your legal dispute, and hopefully in your favour. Disputes can concern anything from unpaid bills, unfulfilled contracts, construction-related claims to defective or ineffective products, and there can be different remedies sought for each, but in our ongoing commercial dispute example, we will assume you are seeking a monetary damages claim.
From the outset, it is more likely that your legal dispute will not be settled in Court, but somewhere along the long and winding legal litigation process system.
As we mentioned above, your lawyers job is to resolve your dispute on the best terms possible, and hopefully also in the shortest time frame, and with the minimum of legal fees incurred. There are a number of tools and steps available to assist with a pre Court settlement so as to avoid the full litigation process.
The least expensive and fastest route to a settlement is achieved by the opposing lawyers simply talking to each other, or negotiating. You may not have been able to agree a settlement with your opponent personally, but with the lawyers now talking and making recommendations to their respective clients, a resolution may be still be reached.
If general negotiations fail to reach a conclusion, then a form of ADR (Alternative Dispute Resolution) called mediation may be suggested by either party. This is more formal than negotiation, but far less formal than a Court hearing.
Mediations involve a professional mediator (so additional costs are being incurred), both sides lawyers, and both parties to the dispute sitting in the same room, face to face, and talking it through.
Mediations can go on for many hours, with both parties putting their side of the case forward for the other to hear, and consider. In most mediations, at some point towards the end of the day, an offer is usually put on the table to settle the dispute there and then. If the offer is accepted, the dispute is therefore settled. If the offer is declined, it can be accepted at a later date, or it can be declined outright, for example if the offer was far too low.
The Litigation Process Route
A typical claim dealt with by the High Court will take approximately 12-24 months to get to trial from the date of issue of the claim form.
Pre-action procedures: before legal proceedings are issued, both parties are required to act reasonably in exchanging information and documents in another attempt to settle their dispute without recourse to litigation. Negotiations continue at this stage.
Issuing proceedings and court documents: legal proceedings begin when you (the claimant) issues a claim form that must contain or be accompanied by the particulars of claim. The claim form and particulars of claim must set out a summary of the basic facts of the claim against your defendant.
When your defendant is served with court proceedings, they have to indicate whether they accept or dispute the claim. If your defendant wishes to defend the claim they must serve a defence within 28 days of receiving the claim form. Part 36 offers can be made by either party, and are a common tactic during commercial litigation.
Case management: your case will be actively managed by the courts to ensure that your lawyer proceeds properly. The courts will also consider whether the likely benefits of taking a particular step will justify the cost, and encourage ADR.
Disclosure of documents: you must disclose to the other party the documents (including e mails) it seeks to rely on, as well as the documents which adversely affect your own case or support another party's case. Be warned this can include confidential documents if they are relevant to the dispute.
Witness statements: this is an important stage in the proceedings as what is said in a witness statement may be determine whether you or the other party seeks to settle the dispute.
Expert evidence: if you need to rely on the opinion of an expert, the court's permission will be needed. An expert witness must be independent, with an overriding duty to the court rather than the instructing party, i.e. you.
Trial: the trial will be determined by a single judge alone at first instance.
The trial will be predominantly oral, requiring each party's representative to make oral submissions and draw the judge's attention to the relevant evidence and law. However, before the start of the trial, the judge will have read the court documents, witness statements, experts' reports and case summary.
The trial consists of each party's representative setting out their case and calling on the evidence of the witnesses and experts that they seek to rely on. These witnesses may be cross-examined by the opposing representative. The trial will end with both parties' representatives summing up the evidence and making submissions on the relevant law. The judge will make his decision based on the evidence and arguments put before him.
Judgement may be given immediately after the trial or, in more complicated cases, reserved until a later date when the judge has reflected on the issues.
Appeal: If you lost the first hearing, all is not lost, you may be able to appeal the judgement but only with the permission of the court, and only in certain circumstances.
But let’s assume all went well and you won your legal dispute, what happens next?