On the Job: Litigation

Feb 10, 2018

Written By Rebecca May, RPC

In order to get more of a handle on what actually makes up the processes of working in litigation, we thought it would be good to get the thoughts of someone who knew it first hand. We spoke to Rebecca May, who works in the litigation department at RPC, and asked her to walk us through some of the more complex steps of a litigation case.

Could you take us through the litigation procedure – pleading, discovery, trial and judgment, appeal and enforcement – and detail what they involve? What is your role in each of these?

1) Pre-action

The first stage in any potential litigation is pre-action. There are various pre-action protocols found within the Civil Procedure Rules which must be adhered to before commencing litigation. Some areas of dispute have a specific protocol, such as Construction & Engineering, but there is a "catch all" Practice Direction for all other disputes.

The rationale behind the pre-action protocols is that the parties should communicate and attempt to agree disputes without recourse to the courts. This involves the supposedly aggrieved party sending a Letter of Claim explaining their position and the alleged aggressors replying with a Letter of Response either admitting or setting out why they deny the claim.

To ignore these protocols will generally be deemed unreasonable and will invoke costs sanctions, meaning that, if successful at trial, a lower level of legal fees will be recoverable or, if unsuccessful at trial, a higher proportion of the other side's fees will be payable.

Solicitors acting for the prospective claimant will provide "merits" advice about the strength of the prospective claim and ultimately whether the claim is likely to be successful at trial. If there are not good prospects of success it is generally not advisable to pursue litigation as this is time consuming and costly in terms of legal fees and potential bad publicity.

Solicitors acting for the prospective defendant again will provide "merits" advice. If the client has a strong defence it would normally be advisable to make clear to the prospective claimant that the proposed defendant expects to be successful in the defence of the claim and urge the prospective claimant to reconsider commencing the litigation process.

If the client does not have good prospects of defending the claim, it would be sensible to consider settlement whilst maintaining as strong a position as possible in open correspondence.

2) Pleading

Pleading is a term used to refer to the parties' written statements.

The claimant's first pleading is their Particulars of Claim where they must clearly set out the claim. In simple terms it should cover the following areas:

Duty: this will normally be contractual or tortious, but could be fiduciary;
Breach: how the duty owed has been breach by the defendant;
Causation: how the breach has caused the claimant to suffer loss;
Loss: what harm has befallen the claimant due to the defendant's breach.

The Particulars of Claim will normally mirror, but also supplement, the Letter of Claim which should have been issued at the pre-action stage.

The defendants will have the opportunity to file a written Defence. They must do this within 14 days of service. This can be extended by filing an Acknowledgment of Service within 14 days, meaning the Defence will be due in 28 days instead, agreeing a further extension with the other party(ies), or obtaining an extension from the court.

The Defence should set out which parts of the Particulars of Claim are admitted, denied or outside the knowledge of the defendants and should be proved by the claimants. The Defendant may also make a counterclaim with its Defence. If the client considers it has a strong defence it is important that this is elucidated in the Defence to encourage the claimant to withdraw their claim or accept a low settlement offer.

The Claimants have the opportunity to put in a written Reply to the Defence and will choose to do so if they consider that there are arguments in the defence which can, and should, be dealt with on paper.

A CPR Part 18 Request for Further Information may be made where one party considers that certain factual information is required to plead or defend the case, they do not have access to the information and another party does have access to. Assuming that the Request is properly formulated, the other party will be obliged to respond.

3) Discovery

Discovery is now more commonly known as disclosure and relates to the documents underlying a case. Before drafting pre-action correspondence and pleadings lawyers will be shown a sample of the most relevant documents to the claim, however they will not have reviewed all potentially relevant documents as the cost of doing so at that stage would be disproportionate.

The first step in disclosure is harvesting all of the potentially relevant documents. With the advent of technology there are often millions of such documents. Where there is a high number of electronic documents the parties will normally appoint an electronic disclosure provider who will harvest and host the documents.

The disclosure provider will de-duplicate and run predictive coding to reduce the number of documents which need to be manually reviewed. The predictive coding will filter documents which are responsive to keyword searches and only those that contain content relevant to the dispute will be manually reviewed. Typically paralegals and trainees will carry out a first level review of these documents for relevance.

Each party will produce a Disclosure Statement and accompanying list of documents setting out which documents they consider to be disclosable and which ones they are willing and able to provide inspection of. The other side will request inspection of any documents they wish to look at (normally all documents which are disclosed and inspectable) and will carry out their own review of the documents to determine whether any support or undermine their client's case.

4) Trial and judgment

Trainees will generally be involved in the preparation for trial and attend to observe Counsel in action. Typically trainees will produce the trial bundles of relevant documents, which may be produced in either hard copy or electronic copy. The trainee will therefore need to be on hand to answer any queries as to where documents are, particularly if anything has gone awry!

The court room is predominantly the domain of Counsel who will conduct oral submissions and examination / cross examination of witness and expert evidence. Solicitors generally sit behind Counsel and will pass notes on any points which occur to them on hearing submissions and evidence.

The judge(s) may ask questions as the trial progresses and Counsel must factor this in when making submissions as they are limited in how long they can spend making their arguments.

The judge(s) will normally then retire to consider the evidence before them, and in all but the simplest cases, will hand down judgment on a future date. The judge will tend to produce both a written judgment and orally hand down the judgment in public.

5) Appeal and enforcement

Often in litigation there is a winner and a loser (at least on some points) and the loser may well consider that they should not have lost. In these circumstances they can apply for permission to appeal either at the handing down of the judgment or (normally) within 21 days on judgment. In England & Wales civil cases will usually first be heard in the High Court with the possibility of appeal to the Court of Appeal and then Supreme Court.

If the Claimant is successful this will typically result in the Defendant either having to pay the Claimant money, or having to do something specific. If the Defendant does not pay money which is owed the following methods may be engaged to enforce the judgment: a writ or warrant of control; a third party debt order; a charging order, stop order or stop notice; an attachment of earnings order (in the County Court only); or the appointment of a receiver.

How are trainees introduced to the court environment? What procedures do they tend to be involved with?

Trainees in litigation seats will typically have the opportunity to work with and attend conferences with Counsel on the matters they are assisting with to get a further, more academic, perspective on the matters they are working on.

Trainees also generally get the opportunity to attend court either during trial and / or at a preliminary hearing. Litigation is a long process, so a department may not have any trials heard during a sixth month trainee seat, however trainees can also attend, for example, a case management conference or disputed application and watch advocacy in action in these forums.

How is professionalism maintained in sensitive cases?

Professionalism is maintained by understanding the client's case and needs, and applying the law in a commercial manner to reach a satisfactory resolution. More senior lawyers will help to explain particularly sensitive situations to trainees and why they are so delicate and important to the client. Trainees are therefore given sufficient background to understand the issues and maintain professionalism at all times.

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