Litigation
Disputes & Litigation

Litigation is a court based dispute resolution process, characterised by preparation of formal pleadings by the parties to the litigation (called 'particulars of claim', 'defence', and 'counterclaim' amongst other court documents), production of evidence (expert evidence or evidence of fact), and the trial before a judge.

In England, when a person commences litigation under Part 7 of the Civil Procedure Rules, the claimant files and serves particulars of claim which sets out the facts (and sometimes the law) which underlie the cause of action relied upon by the claimant making the claim. The particulars of claim also set out the relief or remedies sought by the claimant in the legal proceedings, for instance, an injunction, an award of damages, an account of profits, an order for delivery up, a declaration, amongst others. The Defence sets out the defendant's answer to the claims set out in the particulars of claim which are recognised at law, whether they are complete defences, partial defences or mitigate the damage alleged to have been suffered by the claimant.  The claimant then has the opportunity (but not the obligation) to file a response to the Defence, which is known as a Reply. 

After the pre-trial procedures have taken place, such as disclosure and preparation of expert and lay evidence, the dispute is heard by a judge sitting alone, without a jury - this is the trial. The judge hears the arguments and supporting evidence submitted by both the claimant and the defendant (and other parties, where applicable) and thereafter determines all issues of fact and law in dispute, and enters judgment in favour of either the claimant or defendant. The Court may make its judgment at the end of the trial, or reserve its judgment and hand it down at a later date.

Courts have extensive case management powers to regulate legal proceedings. After the pleadings have closed (that is, the reply is filed, or if none is filed, the Defence), the Court will allocate the proceedings to one a "track", that is the small claims track, fast track or multi-track.  The track is determined in part by responses to allocation questionnaires required to be filed by the parties.  The track designated for the proceedings most often depends upon inter alia the value, legal complexity and seriousness of the claims made by the claimant and defendant. The purpose of allocation is for the court to allocate appropriate court resources to the dispute.  Cases allocated to the fast track or multi track invariably require greater resources of the court which are reflected by the case management directions issued by the court.  The case management directions set the timetable for the litigation, most often up to the trial.

The Civil Procedure Rules provides an alternative form of proceedings to Part 7 proceedings in England. Part 8 of the Rules is essentially designed to allow litigants to approach the court for relief where there is no substantial dispute in respect to the facts.  Litigants may wish to obtain an answer to a question of law or obtain a declaration of the rights of the parties.  The proceedings take an abridged form, and tend to be conducted more quickly than litigation commenced under Part 7 and with less expense.

The foregoing represents the most basic form of litigation in England.  Defendants are entitled to make claims for contribution from third parties (known as Part 20 or Additional Claims) in respect to their own potential liability to the claimant, and other parties may be joined where a cause of action exists against them and to do so would result in a reduction of further litigation (ie joinder).

Litigation in the UK is conducted in accordance with the Civil Procedure Rules. Legal representatives' conduct are regulated by the Bar Standards Board and the Solicitors Regulation Authority. In essence, these sets of rules are designed to ensure that the litigation is conducted fairly, with no favour or advantage to either or any party to the litigation.