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JUN
07

When would a security for costs be used and what are the benefits?

Generally, in litigation, the losing party is ordered to pay a substantial portion of the winning party's legal costs. Security for costs is a legal remedy that can be sought by a defendant who is concerned they are being pursued by opportunistic claimants who may not be able to (or want to) pay any costs awarded against it.

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JUN
07

Making a claim: what happens after dispute resolution fails?

Parties are encouraged by the courts under the Civil Procedure Rules to attempt to resolve any dispute using alternative dispute resolution methods before issuing a formal legal claim. Methods of ADR that are used include negotiation, adjudication, arbitration, mediation and expert determination. However, ADR does not work in every case and in those circumstances, it may be that more formal court proceedings are necessary. The ADR process can still assist the parties even if the matter does need to proceed to court since they will understand more about the dispute from both sides and will have been able to evaluate the strength of the evidence against them. It is even possible to agree on some points of the dispute before the matter proceeds to court on the remaining issues.

The process

Where ADR has failed, the claimant will need to follow the procedure set out in the Civil Procedure Rules. If they do not adhere to these rules, the court can determine that the claim has failed from the outset.

The first issue that the claimant must comply with is that they satisfy the following two requirements:

  • They have a cause of action that is recognised by the law.
  • They can establish the factual basis to support their claim.

The claimant will base their claim on the above two grounds. To begin the process, the claimant completes a claim form, which includes the above details, and lodges it at the relevant court with the required court fee. The level of fee will depend on the value of the claim. The claim form is generally accompanied with the Particulars of Claim which sets out the alleged facts on which the claim is based. This can be served within 14 days of the claim form being served if it is not served at the same time. In these forms, the claimant also sets out the relevant remedy that they are seeking; be that damages, an injunction or a declaration. The claimant then must serve the claim form and particulars of claim on the defendant within four months of issue (this increases to six months if the defendant is not in England and Wales).

Once the defendant has been served with these documents, they then must file their defence within 14 days of service (or 28 days if they initially file an "acknowledgement of service form) or make admissions to all or part of the claim. However, this deadline can be extended on agreement and this is fairly usual practice.

The claimant must ensure before making the claim that the English Courts have jurisdiction to hear their case, for example, if there is a choice of jurisdiction clause that favours a foreign jurisdiction then the English courts will generally abide by this.

The size of the claim affects which court the claimant should issue the claim form. If it is less than £100,000 then it will usually be issued to a County Court. Cases that are worth more than £100,000 will generally go to the High Court, however, if the court feels they are not very complex they can then be transferred to a Crown Court. If the claim is for personal injury and is at least £50,000 then, again, this will generally be brought in the High Court.

After the defence has been filed, both parties are required to file further documentation with the court including:

  • A "directions questionnaire" that covers the main facts of the claim and states information such as the number of witnesses that the parties intend to call.
  • Budgets that estimate the costs that the party expects to incur for the case.

Following the service of the "directions questionnaire", the court will generally hold a case management conference in order to determine how the case will be conducted. They will fix a trial date and also how and when disclosure of evidence will occur:

  • Disclosure that must happen at least 14 days before the first case management conference. This is a report that is verified by a statement of trust. It states whether or not the document exists (or even may exist), and where they can be found, if they are electronic where they are stored, and the approximate costs that will be involved in retrieving them.
  • Witness statements must be exchanged before the trial.
  • Usually an exchange of expert reports.
  • Skeleton arguments are provided to the court by both parties that outline their case.

The length of trial will depend on the complexity of the case and issues such as the amount of witnesses that each party is calling. In most civil cases, there is only a judge hearing the trial and no jury.

Following the trial, the judge will hand down his judgment. A winning claimant will be given judgment in his favour and if the defendant does not pay then the claimant can take action to enforce this.

An unsuccessful party in a claim can appeal from the County Court to the High Court or from the High Court to the Court of Appeal, with permission from the lower court or appeal court. There must be a real prospect of success for an appeal to be granted.

What should you do if you are served with a claim form?

Do not ignore it! You should immediately take legal advice so that you adhere to the strict deadlines. Failure to respond means the claimant can obtain "judgment in default" in their favour and this can be obtained without the need for a court application or hearing.

As well as responding to the claimant's claim form, a defendant can bring:

  • A counter claim where they have sufficient grounds to support this.
  • A third party in as another defendant to the proceedings (for example if they are the ones actually responsible for the claimant's losses).

It is optional whether the claimant replies to the points raised by the defendant.

Contact our Dispute Resolution Solicitors London, UK

Raising a claim in adherence to Civil Procedure Rules is vital for protecting a right of action as statutory limitations present a definitive barrier to bringing legal action, and contractual limitations can render time constraints even tighter.

Lewis Nedas Law holds over 25 years of corporate litigation experience with both domestic and international clients in a broad range of matters, from preliminary trial proceedings through to post-trial.

For expert advice from our Dispute Resolution Solicitors, please call us on 020 3811 4042 or complete our online enquiry form.

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JUN
07

Guide to limitation in dispute resolution

Parties have a set timeframe within which they can bring a civil claim or give notice to the other party that this is their intention. The main statute that covers limitation periods is the Limitation Act 1980. Limitation periods vary depending on the type of claim that is involved. This can be an issue where time is short, since parties are expected to exhaust alternative dispute resolution methods before issuing claims under pre-action Practice Direction protocols.

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MAY
08

What Happens During Alternative Dispute Resolution?

Litigation is not only daunting; it can be lengthy and expensive and impact on the reputation and financial standing of the parties involved. To avoid this, Alternative Dispute Resolution (ADR) covers the methods that can be used to deal with disputes without having to go to court. ADR should initially be considered to solve any disputes. ADR has various features that make it an appealing alternative to using the courts:

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MAY
08

Pre-action Conduct in Intellectual Property Disputes

Intellectual property disputes, like other types of civil claims, are governed by the Civil Procedure Rules. Parties are under an obligation to exchange information and consider Alternative Dispute Resolution (such as mediation or arbitration) before they begin any court proceedings. Therefore, pre-action correspondence must be carefully drafted. Those involved in intellectual property disputes can use the following to assist them with this:

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