The Litigation Series – Week 9: Issuing And Serving Proceedings
In the Litigation Series to date, all the steps that have been taken so far have been done without the Court’s involvement. The reason for all this is to try and facilitate early settlement of the claim between the parties (essentially an out of Court settlement). This is because formally issuing Court proceedings should be viewed as a “last resort”; when all other avenues to try and settle a claim have been exhausted. This week I will be looking at what it means to “issue and serve” Court proceedings and how this process works.
(From the outset, it should be noted that there are various rules and time limits that may alter the circumstances of issuing and serving a claim. Every case is different, but for the purposes of this commentary, I will only be looking at the main rules of this process. You should seek legal advice if you find yourself needing to issue and serve a claim yourself).
What do we mean by Issuing a Claim/Court Proceedings?
When we speak about “issuing” a claim, what we mean is commencing Court proceedings. This is when the Claimant formally notifies the Court of their case. The Court will then be involved in managing the claim, setting out a timetable of steps (Court Directions) all the way up to a final hearing before a Judge. The Judge will ultimately decide whether to rule in favour of the Claimant or Defendant.
Why do we Issue Proceedings?
A claim will normally be issued if there are still merits in pursuing a case despite receiving a Letter of Response from the Defendant denying liability (please refer back to our week 8 blog on Letters of Notification and Letters of Claim).
In some instances, Court proceedings may need to be issued for other reasons than the claim being defended. For example, if limitation (discussed in Week 1) is due to expire then you may have no choice but to issue Court proceedings to protect your position if an extension cannot be agreed. Otherwise you could be disbarred from bringing your claim. Court proceedings may also be issued in cases where liability has been admitted but quantum (the value of the claim) is still in dispute.
One of the main reasons why issuing Court proceedings is avoided unless necessary is quite simply because of the costs involved. Not only will a Court fee have to be paid but the legal fees for both sides will also substantially increase. There will be the solicitor’s fees, but also expert/s fees. A barrister will also probably need to be instructed. They will assist with preparing Court documents as well as representing you in any Court hearings.
At the point of issuing a claim, a trial may still not take place for at least a year or more. But a case can still settle before any final trial. However, by issuing Court proceedings, both parties will at least have a final date/trial to work towards so that the outcome of the claim can be decided. In the coming weeks, we will be looking at the various steps that will need to be completed before a trial can take place.
How to Issue Court Proceedings?
In order to issue a claim, you will need to complete the Court document known as the Claim Form. The Claim Form in itself is relatively straightforward and provides details such as who the parties to the proceedings are, and the general circumstances in which the claim arises.
However, along with the Claim Form, a more complicated document known as the Particulars of Claim will need to be prepared. (Although this can be can follow at a later point once the claim has been issued).
Particulars of Claim and Other Documents
The following documents will all eventually need to be prepared when commencing Court proceedings. But they do not need to be provided when the claim is initially issued (unless stated otherwise):
1. Particulars of Claim
This is a vital document. It will provide in much greater detail the basis of the claim in terms of the facts and the allegations being made. It is very important that all the allegations are clearly set out as you cannot introduce new allegations later down the line. In order to do this, you would need to formally amend your Particulars of Claim, which can become a complicated process. It is therefore best to clearly define all your allegations from the outset although this may not always be possible. Generally the Particulars of Claim will be prepared by a barrister rather than a solicitor. However, it is a team effort. You will want your medical experts to be involved as well, to check that the pleaded allegations are correct. Often a conference will be organised between the solicitor, barrister, expert/s and client so that the preparation of the Particulars of Claim can be discussed.
2. Schedule of Loss
This details the heads of damages and losses being claimed as a part of your case.
3. An expert report on the Claimant’s condition and prognosis
(Unless it is a fatal claim where someone has died.)
4. A Grant of Probate or Letters of Administration
This is an exception and these documents will need to be provided when issuing a claim in a fatal case. As you may be bringing a claim on behalf of a Deceased’s Estate, these documents prove that you have the legal standing to bring the claim as either an Administrator or Executor/Executrix of the Estate.
5. Certificate of Suitability of Litigation Friend
Another exception. This form is required when a person is bringing a claim on behalf of a child (under the age of 18) or for a person who does not have mental capacity.
Where to Issue Court Proceedings
When all the relevant documents have been prepared, they will need to be sent to the Court for issuing. Previously, this was normally done by going to the Court in person or sending the documents in the post. However recently, you can now also do this electronically.
Before sending the relevant documents to the Court you will need to decide at which Court to issue the proceedings. This will mainly be between your local County Court or the High Court at the Royal Courts of Justice. Choosing the correct Court will depend on the specific circumstances of your case. But as a general rule, claims valued at less than £50,000 should be issued at the County Court. You will also need to consider factors such as the complexity of the case and its wider public importance.
In order to issue proceedings you will also need to pay a Court fee (which was touched upon earlier). The price of the Court fee will be determined by the value of the claim. A court fee can range from (at the time of writing), £115 for claims valued between £1,500 to £3,000, up to £10,000 for claims valued greater than £200,000. Some Claimant’s will benefit from what is known as a “Fee Remission.” This is where the Court will waive all or part of your Court fee depending on your financial circumstances and income. So it is always sensible to check whether you would qualify for a full or partial fee remission.
Service of Proceedings
Providing all these steps have been correctly complied with, the Court will then issue your claim by “sealing” the Claim Form with a Court stamp. If you have all the relevant documentation ready, it may be the case that the Court will formally serve proceedings on the Defendant on your behalf. When we talk about “serving proceedings”, this is when you essentially send/deliver the Claim Form and other documents to the Defendant so that they have been formally notified of the claim and the commencement of proceedings. However, typically a solicitor will ask that the Court return the sealed Claim Form to them so that they can effect/perform this step themselves.
If you choose to serve the documents yourself, then you have 4 months from the date of issuing the claim in order to do this. Often this additional time will be helpful to allow the Claimant to finalise documents such as the Particulars of Claim and Schedule of Loss. Again there are strict rules in terms of timings and what constitutes “good service”.
In very broad terms, in order to effectively serve proceedings, you will need to send the following to the Defendant/s within four months of the claim being issued:
- The sealed Claim Form
- Signed Particulars of Claim
- Signed Schedule of Loss
- Signed expert report on condition and prognosis (unless a fatal claim)
- Response Pack: This is another Court document normally provided by the Court when they return the sealed Claim Form. The Defendant will need to complete this to indicate whether they intend on defending the claim or not
- Letters of Administration/Grant of Probate and/or Certificate of suitability of Litigation friend (if applicable)
These documents will need to be sent/delivered to the correct address of the Defendant. This will usually be the Defendant’s normal place of business. But it can be different. If you want to serve documents electronically such as by e-mail or to their instructed solicitors, this will require the prior approval of the Defendant. You should never assume where and how the documents can be served and it is always sensible to check.
At the same time as serving the documents on the Defendant, copies should also be filed with the Court together with a Court form know as a Certificate of Service.
If any of the mandatory documents are missing, you send the documents to the wrong address or outside the 4 month time period, this will be deemed as ineffective service. If so, the Defendant can look to have your claim “struck out” (dismissed) and possibly seek to recover their legal costs from you. If this happens, not only could you have to pay the Defendant’s legal costs, but you would also need to issue your claim all over again. But if your limitation date has already passed, then you might be barred from bringing your claim at all.
Once proceedings have been served the Defendant can choose to admit part or all of the claim, or defend the claim in full. If they do neither within a certain timeframe, you can look to have Judgement entered into on your behalf. Assuming the Defendant seeks to defend the claim, they will then have 14 days from the date of service to provide their formal Defence. But this can be extended to 28 days if they complete an “Acknowledgement of Service” (another Court Form) indicating they intend to defend the claim and returning this to the Court. Further extensions can be agreed between the parties but this will require the approval of the Court.
Once received, the Defence will set out on what basis the claim is being defended. This will usually be done by doing a line by line response to your Particulars of Claim, and confirming which elements are admitted, what is defended and the reasons why.
Once done and a copy has been filed with the Court, a Costs and Case Management Hearing date will be set by the Court. This hearing will be used to set a timetable all the way up to a final trial. This will be discussed in more detail next week.
The rules on issuing and serving Court proceedings is vitally important. I have only set out the main issues in this commentary, but there are multiple other rules that need to be noted. For this reason, you should always seek legal advice if you ever find yourself having to issue proceedings in your own claim to avoid the numerous potential pitfalls.