So you think you have a claim… what next?

There are too many misconceptions surrounding the law and the relevant court procedures that fall beyond the scope of this article. However some of the practical points on the relevant procedure for money claims are covered here.

Watch the time!

Firstly you need to remember there is a time frame within which a claim may be issued. So as soon as there has been a breach of the contract or a problem has occurred leading to a valid claim, seek legal advice immediately and don’t watch the time go by. The time limit for issuing a claim in most contract cases is 6 years starting from the date of breach. The relevant time frame within which a claim must be issued is dependent on the nature of your claim and it may not always be as long as 6 years. As an example for judicial review, the limitation period is only 3 months!

Which court?

The second factor you need to be aware of is where you should issue your claim. In civil matters, the relevant courts are: the County Court and the High Court.
As a general rule, money claims below £100,000 and in case of personal injury, those less than £50,000, should be issued at the County Court. Claims above that amount should be issued in the High Court.

There are numerous sub-divisions within the High Court dealing with different types of claims. These include:

➢ Administrative Court

➢ Chancery Division

➢ Queen’s Bench Division:

• Admiralty and Commercial Court

• Mercantile Courts

• Technology and Construction Court

You also need to issue the proceedings in the district in which the Defendant resides or carries business rather your own hometown. Failure to do this could lead to the transfer of the claim to the Defendant’s location.

Costs

Going to court is expensive, regardless of whether you have a legal representative or not. For any claim issued at the court you will be required to pay a fee. The greater the amount you are claiming, the higher the court fee will be. There will also be the extra costs for travelling and preparation for the case etc. Be sure to calculate all the costs before starting your claim to ensure it will be worth it!

Pre-action protocols

A big part of civil procedure rules relates to the steps that need to be taken before a claim is issued at court. This often includes attempts to resolve the dispute through alternative means rather than recourse to litigation. This could also include pursuing any complaint procedures set by the Defendant or going to the ombudsman where applicable. The court will often require evidence of compliance with this step and in some instances claims have been struck out due to failure to comply with the pre-action protocols. Further, in some cases, such as in personal injury claims, there is a formal and strict pre-action course to be followed. You should consult the relevant procedures applicable to your claim prior to issuance of a claim at court.

The paperwork

Once the above has been complied with and you have identified the correct court for issuing your claim, the battle starts on paper. The amount of paperwork in a case is immense and almost everything you file to the court must be in three copies. One copy will be for the court, one for you and one for the Defendant. So if your claim is against more than one person, you must ensure each of the Defendants are supplied a copy.

The claim form is the starting point where you set out the contact details of yourself and the opposite site. It must also set out the nature of your claim, the facts you rely on and the amount that you are claiming. A separate document setting out the particulars of the claim is often attached to the claim form. This will be more detailed and contain the exact dates and grievances. However, when drafting the claim form and particulars of claim you must consult the Civil Procedure Rules (CPR) to comply with the required format. Otherwise the court could reject the papers and send it back for amendments at your cost.

Written Battle to be continued

Once your have submitted the claim form to the court, then the court will send it to the Defendant. After receiving the papers, the Defendant will have 28 days to send a defence in response to the allegations set out on the claim form and the particulars of claim. Then you will have 21 days to reply to the defence. Although the reply is optional the defence is compulsory and if the Defendant remains silent then you may win by default.

After the claim form and defence are filled, both parties will need to submit, questionnaires about the length of the case, evidence and time needed etc. The parties will also need to disclose and exchange any evidence and documents relevant to the case to the other side. This includes the evidence you intend to rely on in court and any document which is against your case. All documents must be disclosed and shared.

The hearing

The court date could be as long as a year (if not longer) after you first issued your claim form. Not only are the courts always busy but also the extensive preparation described above is extremely time consuming. On the day of the hearing various evidence will be assessed and both parties will present their case before a formal judgement can be delivered. There are numerous rules that need to be observed and legal advice should be sought prior to the trial day.

Post Judgement

One of the greatest misconceptions is the view that once you have ‘won’ and have a judgment in your favour, then you will receive a cheque from the Defendant before your triumphant departure from the courtroom. Sadly this could not be any further from the reality. Enforcement of judgment is crucial post-trial.

It is important to be aware that the court will not automatically seek to enforce its judgments. There are various methods of enforcing judgments set out in part 70 of the CPR. This can be a complex procedure and the suitability of the method employed depends on the nature of the judgment being enforced. It could be time consuming and costly to pursue enforcement but this will be the last hurdle before your judgment is satisfied.

Judgment creditors can for instance satisfy their debt by taking control of the debtor’s goods via a warrant of execution and/or through obtaining a charging order over the debtor’s land or securities. But be aware that these procedures will not be free and there is a cost involved! Also have the financial position of the Defendant in mind. If the Defendant has gone bankrupt or for any other reason is unable to satisfy the judgment, then enforcement measures will be fruitless.

Conclusion

The main things you should remember when it comes to court procedures are the relevant expenses, time and compliance with the mandatory formalities. The battle between the parties is mostly in written format before the court hearing. In addition once you have obtained a favourable judgment that does not conclude the proceedings. You must seek to enforce your victory in order to recover the money claimed and satisfy your judgment.

By:

Faegheh Jenabi
MLaw BPTC
CPC Worldwide Ltd