Litigation

     Litigation is the process of taking a dispute to a court of law.  If parties cannot agree between themselves about the fair and proper outcome of a dispute they will present their respective cases to a court for its judgment. It is a broad term that describes a long and sometimes complex process. In this article, we will break down the stages in the litigation process. There are a wide range of cases which can be resolved using litigation. These can include:

Commercial disputes e.g. claims for breach of contract such as damaged goods or recovery of debts;

Matrimonial matters e.g. determining the extent of a spousal claim in a divorce action;

Claims against the state e.g. A judicial review of a planning decision;

Personal injury claims e.g. monetary claims arising out of an accident where a person suffered harm;

Employment disputes e.g. a claim for wrongful dismissal.

    Once the pleadings are filed, the parties will have a fair idea of which issues of fact or conclusions of law are in dispute. The purpose of the pre-trial procedures is to:

Narrow the issues in dispute between the parties;

Disclose to the other party all the documents in their possession or control which are relevant to the case (which either support or are adverse to their case);

Prepare for trial e.g. estimate the number of days required;

Explore the possibility of settlement.

The procedures for the above are set out in detail in the Civil Procedure Rules. It is vital that both parties engage with each other in a civil and co-operative manner. If a party is shown to be obstructive or evading its obligations under these rules, then they could face a penalty for costs even if they are ultimately successful in the action.

    Trials are held in open court and heard by one judicial officer. As part of the pre-trial procedure the parties will have estimated the number of court days required to hear all the evidence and argument. The court administrators will serve a notice on the parties advising them of the date and time of the trial. It will be the responsibility of the legal representatives or the litigant in person to ensure that they are properly prepared to start on the allocated day and that all of their witnesses are at court to give evidence if necessary.

    Once the court has heard the evidence and argument as to the correct legal conclusion based on the evidence, it will make its decision. This is known as a judgment. It is usually in writing and will set out the facts the court found proved and the legal conclusion based on those facts. The judgment will also contain a direction as to who should pay the costs of the litigation.

    If the parties are not satisfied with the outcome one (or sometimes both) can apply to appeal the judgment to a higher court. An appeal court will, as a general rule, not interfere with findings of fact made by the first judge (because that judge had the opportunity to observe the witnesses and make decisions about their credibility) but it could disagree with the judge’s legal conclusions and either overturn or vary the original finding.