Litigation covers a great deal and is less an area of the law than a way in which the law is implemented with areas of its own. It covers disputes whether they be over a property boundary with your neighbour or over your gym membership.
Litigation is either criminal or civil with the former dealt with in its own category on TakeLegalAdvice.com. Personal injury is an area of litigation, as are professional negligence and defamation, and employment and probate are also commonly litigated. These are also dealt with individually on the site.
The aim should be to resolve the dispute as efficiently as possible. Court can be the most appropriate way of achieving this but time and expense can often be saved by using mediation. A dispute can sometimes even be settled by simply sending a letter.
When making a claim you have to decide whether it is worth the legal fees. There are two matters to be settled in dispute: liability and compensation. If the other party denies liability then it will mean a longer process involving mounting legal bills or a settlement that compromises on the amount you have been pursuing.
It is easier to pursue a claim if there is a written agreement. However, verbal agreements are still binding and you can pursue a claim based on something agreed in conversation.
It is important to bear in mind that you are liable for the other side’s costs if you lose (except in small claims). If you win you can expect to recover about 60% of your expenses and maybe even the full amount.
The county court
If your claim does go to court it will most likely be heard in the County Court. High Court claims are either heard at the Royal Courts of Justice in London or a local District Registry.
A case can be started in any county court but is usually transferred to the one local to the defendant. If it is defended it will be dealt with according to the appropriate track decided by the court.
The three tracks are:
- the small claims track (for claims worth less than £5,000)
- the fast track (for claims worth between £5,000 and £15,000)
- the multi-track (for claims worth over £15,000)
The Small Claims Court
This is a fast-track division of the County Court system. If your claim is worth less than £5,000 then you will go through this process, unless the matter is particularly complex.
Hearings are held in the judge’s private offices rather than a courtroom and are devoid of the usual formalities. This makes the process far more user-friendly and means you may not necessarily require a solicitor to represent you. You would still be advised to speak to one before commencing proceedings however.
In the small claims court you are neither liable for the other side’s expenses nor able to recover your own. You may however be able to claim up to £200 to cover the use of an expert witness.
This involves an independent third party helping both parties reach an agreement. By avoiding court you can save time and, consequently, legal expenses. Mediation also permits for a more flexible solution than could be achieved in court, meaning things like an apology or explanation can be included.
The mediator is neutral and does not impose a decision but rather helps facilitate one. The process is voluntary, confidential and an agreement is only implemented if both sides are happy with it. If not then you can still go to court.
The parties share the cost of mediation.
In essence this is government funding for your case. The availability of such funding is becoming increasingly rare though and is most commonly used for cases such as medical negligence.
LEGAL EXPENSE INSURANCE
If you have this it is most likely to be attached either to your household or car insurance policy. You can also take it out as a free standing policy.
NO WIN, NO FEE
This option pretty much does what its name suggests: if you lose then you do not need to pay your solicitor; if you win then the other party pays your solicitor’s fee.
However, such a scheme will not necessarily cover everything. There may be disbursements related to your solicitor’s - such as medical reports, expert evidence and barristers’ fees – that you will have to pay. If you lose you would still have to pay the other side’s costs.
A growing number of solicitors will allow you to pay this way depending on the nature of your case. It is also known as a ‘conditional fee arrangement’.
AFTER THE EVENT INSURANCE
If you take out such a policy it will cover your expenses should you lose your case.
The Law Society guide to civil litigation