5 Frequently Asked Questions relating to settling a case before, during, or after Proceedings.

These responses are for guidance only. They are to be read as an aide memoire to the explanatory notes accompanying various Parts of the Civil Procedure Rules 1999. This response does not cover any part of Part 36.

I want to issue proceedings/sue in Court. Is there anything I need to do beforehand?

Yes. Pre-Action Protocols dictate that a Letter before Action otherwise known as a Letter of Claim must be sent by you as the proposed Claimant against a person or a Company, the proposed Defendant beforehand. There are Pre-Action Protocols relating to specific subjects such as Defamation, Professional Negligence, Housing, Medical Negligence Claims, Personal Injury etc…in the event that no specific protocol applies to your claim, Part 4 to the Practice Directions of the Pre-Action Protocol will apply, and you must follow Annex A, to comply with what contents your letter should cover. You have to give a reasonable time to await a response. If you do not comply with the pre-action protocols, you may suffer adverse costs against you, even if you were to win your case.

 I have complied with the relevant Pre-Action Protocol. What next?

Have you tried speaking to the other side to resolve matters? Either directly, or indirectly through a mediator ?

Why as a Litigator, would I not be pushing for you to proceed to Court? The answer is that there is a positive duty on all Parties to try and resolve matters without reverting to Court by way of Alternative Dispute Resolution. This could be by way of Arbitration, Mediation, Conciliation, or some other form of dispute resolution. If you have a contractual relationship, there may be an arbitration clause in which case you will need to follow the dictates of the Contract. If in doubt, consult a Solicitor.

Ok, nothing has worked and I now want to go through the Courts. What do I do ?

If you have now exhausted all routes of negotiations, then proceed  but remember that you could always refresh talks at any time, and settling a case by way of amicable compromise is ALWAYS preferable to going through the stress, strain, and costs of Court.

What is unreasonable behaviour ?

The Court may deem not complying with pre-action protocols as unreasonable behaviour. Also, if you bring a claim which is frivolous, spurious, or vexatious, or are generally unco-operative with the Court, or the other Party, you may find yourself on the receiving end of a costs Order against you, even if you win the case.

I have an allocation questionnaire and there are questions asking if I want to stay proceedings. What are the effects of a ‘stay’ of proceedings ? What happens if I do not agree to a stay, and I do not want to talk at all to the other side but simply want my day in Court ?

A Stay of proceedings means a halt or ‘time-out’ from the case. The Court timetable is frozen usually for 28 days to allow the Parties to try and resolve the case.

If you do not want a stay of proceedings, it has to be for good reason. There is a positive duty on all Parties to try and settle matters without a full hearing. Costs are usually imposed as a penalty if you did not try to settle matters and a case was settled. See Dunnet v Railtrack. There are however, other cases where if the Parties are so diametrically opposed, or there is and cannot be any common ground, then in certain circumstances, a stay of proceedings would not be productive or conducive. Such a decision must not be taken likely because of the duty to try and settle, and you should seek independent legal advice.

Simply wanting your day in Court when the case is capable of being resolved, would not be a good reason for not agreeing to a stay of proceedings.

Often a defendant can be completely unaware that a claim has been made against them until after the judgement has been put in place and the defendant may not realise what is going on until he received the county court judgment order or answers a knock on the door only to come face to face with a bailiff.

However, when a defendant finds himself or herself in a situation like this there are certain steps he can take to have the judgement set aside, so long as they act quickly.

On finding out about the order the defendant must apply to the court quickly to Set Aside Judgement.

Setting Aside Judgement

A judgement against the defendant may be set aside by the court if the defendant acts fast after receiving the judgment. The defendant often will argue that they did not receive the court claim but will also need to show that he, she or they have a good chance of defending the claim.

Putting in an Application

When a defendant intends to put in an application for a Stay of Execution and to Set Aside Judgement he or she will require an application form from the court. Must pay the court fee and must be able to back up his application with either a statement or an affidavit.

The Witness Statement

The defendant’s statement should include the name and address of the defendant as well as the case number and should detail the defendant’s involvement in the case, the nature of that case and why the defendant is making an application for the judgement to be set aside.

The statement must also contain a Statement of Truth which should read somewhere along the lines of “I believe that all of the facts stated within this statement are true”.

The Hearing

Once the court has received the defendant’s application for Setting Aside Judgement they will set a date for the hearing. Unlike the hearing for Stay of Execution the claimant will need to be present.

During the hearing the defendant will need to fully explain to the court his reasons for wanting the judgement set aside. The court will then decide whether or not to grant the setting aside of the defendant’s judgement.

If the outcome is favourable for the defendant and the setting aside of the judgement is granted the defendant will then be able to put in a defence to explain why he does not agree with the claim being made against him.

The defendant will need to gather together as much evidence as possible to support his case, this may include contracts between himself and the lender, financial statements, receipts of payment and possibly even witness statements.

It is quite common for a defendant to claim that, with a judgment entered in default of defence, he/she/they did not receive the county court claim and that’s the reason they didn’t file a defence. It will be up to the defendant to apply to set aside the judgment. This is a topic for a different post.

Immediate impact of judgment being entered

Once judgment is entered it is important first to know that the court itself will do nothing except that the judgment will be recorded on the Register of county court judgments. Any enforcement of the judgment by the claimant entirely down to the claimant, who will have a range of options but all of which require further court process and costs.

Once a CCJ is issued it will undoubtedly affect the individual or business ability to obtain further credit such as a loan, credit card or mortgage as they will then be seen as high risk and the judgment will remain on the CCJ register for six years from the date of issue, subject to an exception.

The exception

As stated above, even if a judgment is paid off in full, a record of it will still show up on any credit file. This is unless the CCJ is removed from the register but this can only happen if the individual pays off the full amount owed within one month from the date the CCJ was issued or the claimant co-operates in having the judgment removed or you have applied to set aside the judgment and a hearing relating to this is pending.

If the individual is in a position to do this then it is imperative that they contact the court and inform them that the debt has been cleared as, often, once the lender receives their money, that will be the end of the matter as far as they are concerned and it is doubtful that they will give a thought to informing the court of the settlement themselves.

If you have settled your debt within a month from the date of issue there are a few steps you will need to take to ensure the CCJ is removed from the register.

• Firstly, check the register (to do so click here) which can be obtained for any organisation or individual for a small fee  to see if the CCJ is still present

• Get in touch with the court and ask them to send you the appropriate forms to have the CCJ removed. These will need to be completed and must include your claim number which can be found on the register

• Make sure you have obtained proof of the settlement from the lender. Ask them to send you a final statement or receipt. If they are not forthcoming keep a note of their contact details for the court who will contact them on your behalf

• You will need to bear in mind that a small fee will also be necessary to have your details removed but the court will let you know in advance how much this is likely to be.

Grounds for summary judgment application

Before applying for summary judgment, the party should ensure that it satisfies the grounds set out in the Rule 24.2 of the CPR. Rule 24.2 gives the court a power to rule a summary judgment against a claimant or defendant. The summary judgment can be on either the whole of the claim or can relate to a particular issue. Before making a summary judgment the court needs to assess providing the real prospects of both the defendant and the claimant in respectively defending or brining the claim.

Applying for summary judgment

Both the defendant and the claimant can make an application for summary judgment. The application can be based on:

• A point of law;
• The evidence which can reasonably be expected to be available at trial or the lack of it; or
• Combination of the above.

The claimant’s perspective

The claimant may not apply for summary judgment until the defendant has filed an acknowledgment of service or a defence, unless the court gives permission to do so. If the defendant fails to file an acknowledgment of service or defence, the claimant can enter a judgment in default without applying for a summary judgment. If the court allows for summary judgment application to be made prior to the defendant filing its acknowledgment of service or defence the defendant need not to file its defence until summary judgment application has been considered.

The defendant’s perspective

The defendant can apply for summary judgment at any time. No unnecessary delays should however be made.

Responding to summary judgment application

The respondent must be provided with at least 14 days’ notice before the summary judgment hearing takes place. If the respondent wants to present written evidence it must file and serve it at least 7 days before the hearing. In the event of the respondent relying on written evidence, the applicant may also introduce written evidence providing that a notice is served at least 3 days before the summary judgment hearing.

In accordance with para 2(3) of the Practice Direction 24 such notices must:

(a)    identify concisely any point of law or provision in a document on which the applicant relies, and/or

(b)   state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue, or (as the case may be) of successfully defending the claim or issue to which the application relates,

and in either case state that the applicant knows of no other reason whi the disposal of the claim or issue should await trial.

Court orders

In response to summary judgment application, the court may order the following:

• Judgment on the claim,
• The striking out or dismissal of the claim,
• The dismissal of the application,
• A conditional order.

In view of the above, only the claimant can actually obtain summary judgment. The defendant can apply for the case to be stricken out. When opposing the claimant’s summary judgment application, the defendant will need to file its own application to oppose and have the case stricken out on the grounds of lack of real prospects for the case to be successful at trial.

A conditional offer is an order requiring a party to either pay a certain amount of money into court or take certain steps. The first one is often used against a party that can potentially have financial difficulties in bearing the litigation costs.

You can access the original text of Rule 24 of the CPR by going to the Ministry of Justice website.

Why would I want to rely on a witness statement?

Even if a witness statement is not required it may still be worth to obtain one. Witness statement can add substance to your argument and also will give you a chance to go through all the facts again and make sure that the argument is logically sound and documentation is in chronological order.

What if I cannot obtain a witness statement?

If your case is heard before higher court you will quite likely be required to include witness statement in your case file. In fact by not doing so you may be sanctioned. Although, procedures exist to compel witnesses to come to court and testify you can also rely on Rule 32.9. The rule gives you a chance to include a ‘witness summary’ instead of a full witness statement.

The witness summary must include

(a)   The evidence which would otherwise go in a witness statement; or

(b)  If the party serving the summary does not know what evidence will be given, the areas about which he proposes to question the witness; and

(c)   The witness’s name and address.

Form of witness statement

Specific guidance on how to write a witness statement can be found in sections 17-20 of Practice Direction 32.

By para 17.1 the witness statement should be headed in the same way as any other court document, and by para 17.2 the top right-hand corner should state the following:

(a)    The party on whose behalf the statement is filed (i.e. the Claimant),

(b)   The initials and surname of the witness (i.e. J Smith),

(c)    The number of the statement in relation to that witness (i.e. 2^nd),

(d)   The identifying initials and number of each exhibit referred to (i.e. JSD2), and

(e)   The date the statement was made (i.e. 14/03/2010).

By para 18.1, the statement must be in witness’s own words and must contain:

a)     the full name of the witness,

b)    his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,

c)     his occupation, or if he has none, his description, and

d)    the fact that he is a party to the proceedings or is the employee of such a party if it be the case.

Contents

A witness statement should describe full situation in witness’s own words. All statements must be true and if in doubt the witness should clearly stipulate that the specific point is expressed as a belief. Reason and sources behind his belief should also be included. Any relevant documents mentioned in the witness statement should be attached as exhibits. All exhibits should be kept separately and be numbered.

The statement of truth

By para 20.2 of PD 32 the witness statement must contain a statement of truth in the following words:

I believe that the facts stated in this witness statement are true.

The statement must be signed by the witness himself. It is important to remember that proceedings for contempt of court may be brought against any person who makes false statements.

Going through the court process can be a time consuming and costly venture and one which, no doubt, both parties would much prefer to avoid if at all possible.

It is still advisable to employ the services of a solicitor and it may also prove beneficial to use a mediator to help both you and your opponent in your settlement discussion, especially if things are somewhat tense and fraught.

Below we take a look at some of the many reasons why it makes sense for your business to attempt to settle the dispute without having to enter the court room.

Resources 

When you get down to basics the whole reason for a dispute is money, money which one business or individual feels they are owed by another business through some action or other performed by the defendant which may have caused them harm or damage, so naturally the resources need to be present in order to reach a settlement.

If the opponent’s resources are limited then a quick, out of court settlement would make more sense than going to trial and allowing your business and the opponent’s to accrue further costs which the opponent will unlikely be able to cover.

You could argue that, if the case went to trial there may be a more substantial settlement fee but, again, it comes down to resources and you can’t have what’s not there in the first place. It’s also worth bearing in mind that, when a case goes to trial, it’s never as cut and dried as it may seem and you may well receive far less than you initially expected because the court will have to show a degree of fairness to the other side and take into account their circumstances too. By going to court you may actually be cutting off your nose to spite your face.

Time

Commercial dispute trials are never instantaneous, you may find you have to wait months before the wheels are put in motion so, if the other party involved puts in a settlement offer out of court it would be advisable to at least give it due consideration. It may not be the figure you were hoping for but there is always scope for negotiation.

Affects on your Business

Whether you are the claimant or the defendant a commercial dispute can still have an adverse affect on your business.

Yes, publicity is good for business but not so good when it’s associated with legal issues and, if it’s your business who is expected to make the settlement, a trial may well prompt other companies to follow suit, thus leading to further possible claims.

You will also need to take into account how a trial may affect the day to day workings of your business.

Will staff members require time off to go to court?

Will the business become understaffed with an increased workload?

Will the business experience a loss in sales and profits because of the trial?

Another aspect which is worth taking into account is your relationship with the other party. No doubt, at some point, you both had a relatively good business relationship otherwise you wouldn’t have done business with each other in the first place. Do you want to try to rectify this relationship or, at the very least, set it on an even keel?

It is more likely that an out of court settlement that suits both parties will enable you to reach an amicable relationship than a long, drawn out trial which will no doubt drive the wedge home and, subsequently, cut all ties.

Is this the outcome you want for your business?

The Settlement

We have discussed resources which are obviously going to be a major issue in any settlement and, again, if the resources are particularly limited it may be an idea to perhaps look into other options in which the settlement could be made.

In some circumstances, where the party required to make the settlement is experiencing monetary issues, you may be willing to consider accepting payments in instalments. This would obviously need to be laid out in a contract and agreed by both parties. It may also be an idea to stipulate the clause that if the party making the payments misses or omits to pay one or more of those instalments they will be required to make the entire settlement in full.

Another option if resources are tight is to perhaps combine payments with other offerings such as goods or services. This may also prove useful if the party making the settlement can’t quite reach the other party’s desired settlement figure, thus topping up their offer with an agreed amount of products to a particular value which suits both parties.

Unfortunately, debt recovery is a common occurrence and a frustrating one, but dependant on the amount outstanding, this situation can be rectified.

If the invoice amount is minimal, say, under £500.00, you may want to take a commercial view as to whether it is worth pursuing the issue. You may instruct solicitors to send a letter before action which can be done cost effectively and often works but if not, you will need to weigh up the benefit of paying the court issue fee, which varies depending on the value of the invoice, or whether it is more sensible to absorb the lost monies, to avoid making a larger loss.

So how would you go about starting the claim for unpaid invoices?

The procedure is set down in the Civil Procedure Rules, namely Rule 7.

First of all, you need to get all your evidence together:

-       That would be the contract that you are relying upon, which was entered into with the defaulting party;

-       Any correspondence requesting payment of the monies; and/or

-       Any correspondence which makes it clear that the other party has admitted liability for the debt

-       Copies of any letters warning that you will be taking court action should the debt not be paid.

This letter should be sent prior to issuing proceedings and is called the Letter of Claim. This should contain all the information you are relying upon, together with details that the letter is a letter before action and informing the party to take independent legal advice. This should also set out a reasonable time period for them to respond. The content of the letter should, in all other aspects, accord with the relevant Pre Action Protocol of the Civil Procedure Rules.

If this letter is ignored, then the next step would be to issue proceedings. This can be done online (as a money claim online via the HMCTS website), or by filling in the necessary forms from the Court. Where the debt is a small claim, i.e. Under £5,000, this would be issued in the local County Court. There are certain circumstances where the claim would be issued in the High Court but this would be dependant on (but not limited to) the following:

1. The amount in question;
2.  The importance of the matter to the public;
3.  If the claim is a particularly complex one.

However, if the claim is for damages for a claim of libel or slander, this must be issued in the High Court.

So, in a simple small claim, you must fill in the Claim Form, stating the facts of the matter and appending any evidence that you wish to rely upon in the Particulars of Claim.

This is filed at court, together with the issue fee, and the court will then officially issue the claim. This is then served upon the defendant and he will have 14 days to acknowledge the claim form. If the claim is defended, then he can acknowledge the clam form and request a further amount of time to file a defence.

The claim can be defended in whole or in part.

If there are a number of unpaid invoices for one individual or company, these should all be included under one claim and not numerous separate claims.

Parties must be aware of the importance of issuing a claim in time as there will be a limitation period for the claim. For example, breach of contract is usually 3 years from the date of the breach. Therefore, parties must bear this in mind and if the date of limitation is approaching, you must ensure that the claim is issued in time and ensure that the date of issue is recorded by a reliable method.

With the claim form, there is a space to either type or append the particulars of claim. These particulars should set out the facts and should contain any documents that you wish to rely upon.

The particulars should also be served on the defendant within 14 days of service of the claim form. The particulars should also contain a statement of truth, verifying that the person making it has the authority to make it and that the facts are true to the best of their knowledge and belief.

If these steps are not followed, particularly relating to service of the claim form and particulars of claim, a judge may simply dismiss the claim or make an order as he thinks is just in the circumstances, which may include an order for costs against you. Therefore, great care must be taken with this procedure.

To ensure that the claim form and particulars are served correctly, the court can serve these, or you can serve these on the person by way of employing a process server, or by recorded delivery. Receipt of delivery should be retained as proof of service. Service is deemed to have taken place two days after the form is posted, unless it is served by hand, in which case it will be deemed to have been served that day.

Should you have any issues with outstanding invoices and wish to seek assistance, please do not hesitate to contact me, I am a Solicitor in the Litigation Department at Darlingtons.

A Default Judgment is a judgment entered by the Court without a trial. This will occur when the Defendant fails to acknowledge the claim, being 14 days from the date of service, or fails to subsequently defend it within the time limit specified on the Claim Form, being 28 days from the date of service.

Default Judgments can be either regular Judgments, or those incorrectly entered. Depending on which category it is, will affect what is required to apply to set it aside.

Incorrectly Entered Judgments

Where a Judgment is entered by default incorrectly the Court must set it aside even if there are no merits to any defence which the Defendant may have and even if the Defendant delays in making their application for it to be set aside.

Examples of when it is entered incorrectly are:

• the defendant did in fact file an acknowledgement of service within the time limits.
• the defendant did in fact file or serve a defence or admission of liability within the time limits.
• the defendant had satisfied the whole claim before judgment was entered.

Regular Judgments

Where a regular Judgment has been made, as the Defendant did in fact fail to acknowledge or defend the Claim, then they must satisfy the following conditions to set it aside:

1. that they have a Defence with a real prospect of success; or
2. that the Judgment should be set aside for some other good reason; and
3. the application to set aside was made promptly.

In relation to (1) above it should be noted that it is not enough to simply show an arguable defence. Rather it must be shown that the Defence now put forward would have a real prospect of success. The Court will see no point to set aside a Judgment where there is no real defence, since it will ultimately waste time and money as the Claimant will simply obtain another Judgment at a later time.

In relation to (2) above arguments can be made to try and show why there is good reason to set aside the judgment or why they should be allowed to defend the claim. This could include the fact that they never received the documents and had they done they would have paid the money upfront thereby removing any possible bad credit record against their name.

In relation to (3) the Courts will generally look at the time it took to apply from the date that the Defendant became aware of the Judgment against them. In any application you should explain any delay for the application, as the longer it takes to make an application the less likely the Court will agree to set aside the Judgment.

It should be noted that any application to set aside a Regular Judgment is subject to the discretion of the Judge.

Procedure to Set Aside

To set aside the Judgment an application must be made to the Court stating the grounds for the application. Additionally evidence must be provided to support the application. This usually is in the form of a Witness Statement and any relevant accompanying documentation. If you are relying on the grounds that you have a reasonable prospect of successfully defending the Claim, then a copy of the defence should be attached to the application.

If both parties can agree to set aside the Default Judgment, then the application should be accompanied by a draft Order setting out this agreement for the Court to agree.

Should the other party not agree to set aside the Order, then the matter will go to a hearing where the Court will decide.

When a Judgment is set aside at a hearing, it is usual for the costs of the hearing to be awarded to the Defendant against the Claimant.

What happens after a Judgment is set aside?

When a Court sets aside a Default Judgment, the likely course will be that the case is then referred to a Judge to give directions for the future management of the case so that it will eventually be heard properly, with each party putting forward its case.

How we can help ?

As time is of the essence when applying to set aside a Default Judgment, we can help to prepare all aspects of the application to set aside, including the application form, draft orders, witness statements and defences.

Shmuel Portnoy - trainee solicitor at Darlingtons

We will work with you to draft all the appropriate forms quickly and efficiently and can advise you throughout the proceedings, including negotiating with the other side to try and consent to set aside, appearing at the hearing itself or instructing Counsel to do so and dealing with the case moving forward once the Judgment is set aside.

Contact Darlingtons for a further free initial discussion as to how we can help you.

It might be counter-intuitive but if you are a party to a litigation you are required by the Civil Procedure Rules to share information with your opponent.  This includes both documentation that supports your case and documentation that can potentially undermine your case.  The process through which information is made available is known as disclosure.

In essence, the disclosure process requires parties to make all documentation relevant to the matter in dispute available.  The ultimate aim of this is to enable the Court to ensure that justice is done.  The thinking being that without all the relevant information, the Court will not be able to achieve this objective.

The mechanics of the disclosure process are set out in Civil Procedure Rule 31 and the Practice Direction to that rule.

Pre-action disclosure

In many types of cases, before proceedings are commenced, parties are required by the pre-action protocols to share information.  However, at the pre-action stage there is no general obligation to show your opponent documents that are adverse to your own position.  If you believe that a party may have documents in their possession that you need in order to evaluate the strength of your position, for instance when trying to decide whether you should issue proceedings against them, then you are able to make an application to Court for pre-action disclosure.

Standard disclosure

Standard disclosure requires the parties to carry out a reasonable search for documents which record information that they intend to rely on, or which adversely affect or support another party’s position.  The parties are required to search for all documents that relate to the issues in dispute.  There is no requirement to provide documents that relate to issues that have been agreed.

The duty of disclosure is not limited to only the documents that are currently in your physical possession.  It extends to all documents that are or have been within your control.  This includes documents that have previously been in your physical possession.  It also covers documents that you have or have had a right to possess and documents that you have or have had a right to inspect.  Documents held by your agent, are deemed to be within your control and must therefore be disclosed.

What types of document must be disclosed ?

Disclosure is not just limited to written documents.  The definition of “documents” under the Civil Procedure Rules extends to “…anything in which information of any description is recorded”.  This includes:

• photographs;
• tapes;
• computer records;
• emails;
• electronic documents stored on servers and back-up systems;
• electronic documents that have been deleted;
• the information associated and stored electronic documents known as metadata (the data that describes and gives information about other data).

How broad a search for documents must be carried out?

It is important to remember that, in order to give standard disclosure, you are required to make a reasonable and proportionate search.  What is reasonable and proportionate will depend upon:

• the nature and complexity of the matter;
• the number of documents involved;
• the importance of the document; and
• the ease and expense of retrieving the document.

Procedure for disclosure

An order for disclosure is usually made at the first case management conference.  Disclosure is then usually carried out by the parties exchanging lists of the documents concerned.  This is done by completing Form N265.  The standard Form N265 can be accessed by clicking on the following link: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n265_1005.pdf 

Parties are required to complete a disclosure statement confirming that they understand their disclosure duties and certifying that these duties have been complied with.

Once lists of documents have been exchanged, parties are entitled to request copies of the documents listed or inspection of the originals.

Parties should remember that the disclosure obligation continues until the proceedings are concluded.  The duty does not simply come to an end once the initial disclosure process has been complied with.  If a relevant document comes to light after initial disclosure, or even if it is created after initial disclosure, it must be disclosed.

What if you think the other side has failed to provide adequate disclosure?

If you suspect that a relevant document has not been disclosed by your opponent, you should notify them that you intend to apply to Court for an order for specific disclosure. If this does not result in disclosure of the document in question, you should issue the application.

If an order for specific disclosure is not complied with, this may result in your opponent’s case being struck out.

Non-party disclosure

If you believe that a person that is not a party to the litigation may have a document that will either assist your case or undermine your opponent’s within their control, it is possible to apply to the Court for an order requiring that this be disclosed.

However, whether or not an order for non-party disclosure is granted will depend upon the discretion of the Court.

Privilege

Certain documents can be withheld from inspection on the basis that they are privileged.  The following documents are privileged:

• documents protected by legal professional privilege;
• documents privileged on the grounds of public policy;
• documents that would incriminate the party producing them.

All communications that are written to or sent by your solicitor in his professional capacity are covered by legal professional privilege and are therefore privileged from inspection providing they were sent for the purpose of obtaining legal advice or assistance.

Communications that your solicitor has with third parties are also privileged from inspection on the basis of litigation privilege if they are both created after the litigation was contemplated and are made for the purpose of giving advice or obtaining evidence in relation to the litigation.

Guidance

Matthew Price - litigation solicitor at Darlingtons

Disclosure is a key aspect of litigation. It is extremely important to ensure that you comply with your disclosure obligation and that you make sure that your opponent is doing likewise.  Failure to properly consider your opponents disclosure and hold them to their disclosure duties could result in key documents that could potentially undermine their case being missed.

If you need to deal with disclosure it is important that you have the right legal advice.  Darlingtons would be happy to guide you through the process.

There are County courts all over London and they do vary greatly in terms of size and the types of claims they deal with. There are also variances in efficiency and solicitors who regularly attend hearings or trial sat the courts will also tell you that Judges differ, after all, they are only human.

It’s hard enough and annoying enough as it is to have to sue someone, which in turn entails spending more money in circumstances where you are perhaps owed an important amount of money personally or to your business. The process is often seen as slow anyway, so the last thing you need is to choose the wrong court.

As solicitors, all our litigators at Darlingtons, and in fact all solicitors generally, are Officers of the Supreme Court, and have duties to the Court system, so we are naturally measured about what we say. However, as an example, 2 courts in London have historically been known to be so busy that it can cause problems. These are Willesden County Court and Bow County Court.These are 2 of the biggest and busiest County Courts in London, so it’s perhaps not a great surprise that they do encounter problems.

On many occasions, these courts are so busy that paperwork can be mislaid and hearings overlisted which can mean significant delays to case, increased cost and great frustration. If you are pursuing you case using a solicitor or barrister at significant cost and have to attend a hearing and find that instead of being heard at it’s listed time of 10am it has to be put back to 2pm or even is not heard at all, this can be infuriating.

Bear in mind that some cases, such as property possession claims, have to be started in the court local to the property and that having started a case, a defendant may ask for the case to be moved to a court closer to him/her/them ( a decision on this would be made based on the balance of convenience), but we recommend that you ask around, ask your solicitor for advice on choice of venue and if you are representing yourself, phone the court and ask about how busy they are, what the average time is for a case to get to trial,perhaps for a copy of the latest data on the court’s performance (they may or may not be able to give you this but most if not all county courts display the information at the court) and compare this with another County Court not too far away.

If you need help or advice with any litigation matter or want to know more about our experiences of the various County Courts, please get in touch with me. You may also want to visit our main site, http://www.darlingtons.com