What is litigation?
The court process of resolving disputes. Each party submits their position and evidence and the Court decides which party it prefers and 'finds' for them (i.e. they 'win').
What is ADR?
Alternative dispute resolution. Any means of resolving a dispute without the Court making a decision. This can happen before a claim is started or at any time after, including after trial if a decision isn't made immediately. Some popular methods of resolving disputes include negotiation, mediation, round table meetings, early neutral evaluation and arbitration.
Lawyer, solicitor, barrister? I'm confused. Who do I need?
Possibly all of them, but that depends how things go. A lawyer is any legal advisor, so includes paralegals, legal executives, solicitors and barristers. You may need a combination of these advisors to help you.
Your day to day work would usually be done by a solicitor, legal executive or paralegal under the supervision of a manager or partner. A solicitor or legal executive will have trained to a standard required either by the Law Society or Chartered Institute of Legal Executives to get that title. A paralegal is usually a person training to obtain one of those titles.
You may also need a barrister (also known as 'Counsel'), either to give specific advice on the likely outcome of your case or as advocate at a hearing (or both). A barrister is an expert in a particular area of law, where a solicitor is more of a generalist in the type of law they work within (e.g criminal, family, litigation). A barrister can give a more definitive assessment of your prospects of success, based on their specialist knowledge and experience. A barrister also presents your case at trial (and sometimes at shorter hearings along the way).
Then what's a litigator?
Technical definition: a person authorised under the Legal Services Act 2007 to conduct litigation. Usually this is a solicitor, but some barristers can do it too. Solicitors will write letters, fill in and submit forms, prepare documents and advise and liaise with you, as well as control the timetable and day to day case strategy.
Do I have to go to court?
If the claim you are involved in reaches a trial then you would generally need to attend and give evidence. You probably wouldn't be needed at any hearings along the way, but your advisor will tell you. If you can settle the dispute before a trial then you wouldn't need to go to court. If you can settle before a claim is issued you may avoid using the Court at all.
Can I handle it myself?
For a lower value, straightforward claim you probably can and the Court would certainly expect you to. Where a claim is not about money, or is high value, it is more likely you would need a lawyer.
The Court doesn't generally order any payment of costs by an unsuccessful party in claims valued below £10,000. A judge will assist parties without a lawyer at trial and the Court offers a free mediation service by telephone to help resolve matters. If you wished to invest limited fees in a lawyer (which you would not get back), it might be sensible to do that in advice on your prospects and / or in getting your documentation clear.
For claims up to £100,000 the Court has introduced fixed recoverable fees, so that a successful party can only receive a limited amount from the unsuccessful party. The fixed amounts should allow lawyers to provide a decent service level in these claims, so you should still consider a lawyer to be a good investment for claims at these levels.
What steps are involved?
That depends on the type of claim you have, but generally there are four stages in litigation: pre-action; during proceedings; trial; post-trial. The pre-action stage is the time before a claim is issued, when parties set out their positions and attempt to reach a solution. There are some mandatory steps under court rules, but this stage is where an attempt is made to avoid a claim being issued.
If it is necessary a claim is then issued. There is an opportunity for the parties to fully set out their positions in their statements of case (particulars of claim and defence, among others). Once that is done the Court decides what the arrangements and deadlines will be for the parties exchanging evidence (including documents, witness statements and any expert evidence) before trial. Along the way the parties can make further attempts to resolve matters, to try to avoid a trial.
If the parties cannot resolve the dispute, the trial will take place. Each party will present their position and evidence and the Court will make a decision. The Court's judgment will set out who needs to do what and when.
After judgment, the Court will deal with who pays the costs. The parties can also ask the Court to assist with making sure the parties do what the judgment says they should.
What happens at a hearing?
Usually a barrister and a solicitor / legal executive / paralegal will attend for each party. The barristers will each get a chance to speak on the parties' behalf. The judge will ask for clarification of anything that hasn't been said. At a trial there is a specific sequence for speaking and for witnesses to give evidence. At the end of a straightforward hearing the judge will make a decision. For more complicated matters, the decision may be sent or read at a hearing on a later date (known as a 'reserved judgment').
Hearings can take place by telephone, video conference or by physically attending a court building.
What documents will I need?
Anything relevant to the dispute. "Document" can mean anything: information in electronic form, paper documents, video, audio and physical items. The general rule is that if it relates to the dispute you should keep it safe. From the moment it looks like you're in dispute you should preserve your documents. A judge will base their decision on evidence produced, so if something is missing they may find against you, or even draw adverse inferences from the fact that it is missing.
There could also be delays, wasted time at trial, or complications if you mark any documents. While it may be tempting to highlight an original contract, or annotate it with your views, it doesn't go down well with judges.
How much will it cost?
The cost of litigation depends on how much work is involved. Most litigators tend to charge an hourly rate for all work they do, but there is a move towards a more fixed structure. It is likely that fees for cases below £100,000 will largely follow the fixed recoverable fees for the most straightforward cases.
How can I pay?
Most firms will expect a payment in advance for the fees they will charge for a particular piece, or section, of work and will invoice monthly. You may be able to pay by card or by standing order if that helps with budgeting.
It is possible you have insurance to cover your legal fees - look for a legal expenses or family legal expenses policy with an existing insurance policy (e.g. home or professional / business liability policies). Alternatively, trade unions, employers and some charities will sometimes fund legal fees.
Legal Aid is now very limited but you might also like to investigate this avenue.
Can I do a no win; no fee?
Maybe. Some lawyers might consider a no win; no fee policy if you have a very good case and you are likely to recover a lot of damages.
How can I save money?
It is worth making enquiries with several firms before you commit, about fee structures and hourly rates as these can vary greatly between firms. Using a smaller firm with lower overheads and hourly rates could be a sensible way to save.
Why should I use you rather than a big firm?
- I'm cheaper. My hourly rate is fixed and lower than those of partner level lawyers at other firms in the area.
- You can see me for initial advice, at very short notice if you need to, for a fixed fee of £250.
- I am happy to agree fixed fees or payment plans for fees on longer term matters;
- You can be confident that you will receive my expertise in all work, rather than a lower level fee earner under supervision.
- I make judicious use of technology to make time savings and efficiencies that will reduce costs.
- I work flexibly to suit clients, so you can access urgent and out of hours advice when you need it.
- You don't need to wait to speak to me to book an appointment; my website has an online booking portal so you are in control of when you see me.
- I have real world experience of taking cases right up to final trial in both County Courts and the High Court, including reported cases.
- I have a breadth of experience of different types of disputes that is difficult to match by a lawyer working in a larger team where lawyers tend to focus on one particular narrow area.
How do I get started?
Request your initial appointment and we'll go from there. You can upload documents for me to see in advance of our meeting. Once I've made sure I'm not conflicted from acting and you've made your payment of £250 your appointment is confirmed by Zoom link.
Not sure if I'll be able to help? Get in touch.
Where can I find further information?
The Court Service website has lots of information about claims, Court centres, hearings and forms to use.
