The process of Litigation on Receipt or Issuing of a Summons
In addition to this explanation - please also see the Small Claims FAQ
The purpose of this sticky is to explain in general terms how the Court system works, what will happen once a claim is issued, and what duties the Court imposes upon both you as Claimant or Defendant and upon your solicitors. It is a very complex area, and if you have any questions at any time please feel free to post for further advice. This is part one of further postings were we will break down each section into detail on how to conduct and respond in more depth to different stages of the litigation process.
The different kinds of Court and the rules that apply
There are two separate but related types of Civil Court-the High Court and the County Court. There is now little difference between the two, although some types of claim are specifically allocated to a particular Court-for example mortgage repossessions are always dealt with in the County Court. More complex or high-value claims and some special types of claim are dealt with in the High Court.
The rules of the civil Court system are contained in the Civil Procedure Rules ("CPR"), which are available on line at the Court Service Website at www.hmcourtsservice.gov.uk. These rules regulate the Court's procedure; they do not contain the law that must be applied to each particular case. The CPR also deals with issues such as costs, and the way in which appeals are dealt with. The intention of the CPR is to ensure that cases are dealt with fairly, expeditiously, and as cost-effectively as possible. This is called the "overriding objective". It is the duty of the parties to assist the Court in meeting this objective. Parties that do not assist the Court in doing so-by delaying, for instance-may be punished by costs being awarded against them, or their claims or defences being struck out. It is very important therefore to keep to the rules and to any timetable laid down by the Court.
How claims are started - the Pre-Action Protocol
In some types of case the CPR requires the Claimant (as the party bringing the claim is known) to follow a procedure before a claim is issued from the Court. This is known as a "pre-action protocol". Essentially this requires the Claimant to write to the proposed Defendant setting out the claim in detail, and allows a period of time for the proposed Defendant to respond. In highly complex claims such as building disputes the pre-action protocol provides for a meeting to take place after the exchange of these letters to try to identify the issues that the parties agree and disagree upon. Sometimes experts are also involved at this stage. A party that refuses to comply with a protocol and insists on issuing proceedings may not get their costs back, even if they are successful at trial.
A new pre-action protocol for debt claims came into force on 1 October 2017. This basically requires that the two parties attempt to resolve the matter by an exchange of correspondence. This exchange could go on for as long as 90 days – depending on whether each party responds to the other. Here is a link to the Ministry of Justice PDF https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/pre-action-protocol-for-debt-claims.pdf . At the end of the exchange of correspondence, if it appears that there is no basis for an agreement then the claimant is allowed to issue a letter of claim giving a final 14 days before the issue of the proceedings.
A claim begins by the Claimant sending a claim form to the Court, this may be your local Court or from the CCBC (Northampton) (identifying the parties, their addresses, the type of the claim and the Court fee), and also the particulars of claim. The particulars of claim is a document which sets out precisely what the claim is about, and what the Claimant is asking the Court to do-usually to give judgment for a sum of money, but may be possession of a property for instance. The Court will need a copy for itself and one for each Defendant, and one for the Court to seal and return to the Claimant. The CPR also specifies the various forms that are required. The Court will also require a Court fee when a claim is issued, and the amount depends on the amount of the claim. Information about the fees payable is available on the Court Service Website at www.hmcourts-service.gov.uk as well as many of the forms that the CPR requires. COURT FEES can be paid in cash or by cheque made payable to "HMCS" (Her Majesty's Court Service).http://www.justice.gov.uk/courts/fees
Once issued, either the Court or the Claimant serves the claim form and the particulars of claim on the defendant, together with a "response pack", either by post or by personal service. The response pack contains a number of standard forms, which gives the Defendant a choice as to how he or she deals with the claim; they can admit it all, admit part of the claim and defend the rest, or defend the whole of it. Forms N1 the Summons N9A and N9B Response and Defence/Counter Claim. It is important to note that in cases were full admittance is admitted (N9A) the Court requests you send this to the Solicitor for all documents as per the claim form address. It is advocated that you only copy the Solicitor and send the admittance back to the Court.
Once a claim is served on the Defendant time begins to run. Either a defence or an acknowledgement of service must be filed with the Court within 14 days of receiving the claim form. If an acknowledgement of service is filed, the Defendant then has 28 days from service of the claim to file a defence. If no acknowledgement of service or defence is filed within the time permitted an application for judgment in default can be made by the claimant. If judgment is obtained this way the Defendant can apply to the Court to set it aside, but in most cases it is necessary for the Defendant to explain why no defence was filed in time, but also show that there is an arguable defence to the claim. There may also be the Claimant’s legal costs to pay even if the judgment is set aside. However if the Defendant pays the amount claimed together with the costs (i.e. the issue fee and any legal costs claimed, which are fixed at this point) within 14 days of receiving the claim the case proceeds no further.
When the Court receives a defence it will send a copy to the Claimant, the claimant will have 28 days to respond and you will be informed of this on notice form the court. If the Claimant fails to respond within 28 days the claim is stayed if they do respond the court will transfer the claim to your local County Court ( CCBC Claims) and it will also send to both parties an "directions questionnaire". Formally N149 & N150.
This document requests information from the parties that will help the Court determine how the claim should be managed. The District Judge considers the issues raised by the claim form, the defence, and what is said in the allocation questionnaires, and then either makes a directions order or sets a hearing date for the parties, when the order will be made. The hearing is often now dealt with over the telephone rather than at the Court itself, unless one or both of the parties are representing themselves. In cases of Fast Track and Multi Track the Claimant/Defendant will submit their own proposed Directions
The CPR divides claims into 3 "tracks", depending on a number of factors that are considered by the District Judge when the Court receives a defence from the Defendant. Principally the Court considers the value of the claim; if it is less than** £10,000, the Court will normally allocate the claim to the small claims track; if between £10,000 and £50,000 the fast track, and over £50,000 the multi-track. However the Court also considers the complexity of the case-for instance whether experts are going to be needed. It is possible that a claim under £10,000 is put into the fast track for instance. The Claimant must pay an allocation fee to the Court at this stage, unless the Court assigns the claim to the small claims track and the dispute is for less than £1,000. ** subject to review 2012
The directions questionnaire also asks the parties to tell the Court about any dates that they and any witnesses or experts cannot attend. A trial date may be set very early on in the case, and may be difficult or impossible to move. The Court will also decide which Court should deal with the proceedings; if a claim is brought against an individual it will normally transfer the proceedings to their nearest County Court. If the Defendant is a company then the Court will decide where the most convenient place for the trial will be-depending on the location of witnesses for instance.
Two Directions Questionnaires are introduced N180 & N181 one for cases that are provisionally allocated to the small claims track and one for cases which may be allocated to the Fast or Multi-Track. Following the receipt of a defence the court will make a provisional decision as to which track is appropriate based on the value of the claim. The court will then send a notice to all parties requiring completion of the Directions Questionnaire; the notice may also contain other directions. Only where a party is a litigant in person will the court send out the appropriate Direction Questionnaire. Where a case is likely to be allocated to the Fast or Multi-Track parties will be required to file proposed or agreed directions. The time by which the completed Direction Questionnaire and accompanying documents must be filed is increased and parties will have at least 28 days from the deemed date of service of the notice in which to file the documents. All parties will be required to serve a copy of the completed Directions Questionnaire and any other documents required by the notice on all other parties. The agreed or proposed directions for Fast Track cases should follow those set out in Part 28, for Multi-Track cases standard and model directions can be found online. Consequential amendments are made to PD5A, PD5C, PD15, PD28 and PD29. These amendments apply where a defence is filed on or after 1 April 2013.
The directions order
The District Judge may make a directions order either without a hearing, or after he has heard from both parties at a hearing at the Court or by telephone. The order is then sent to both parties (and their solicitors if they are represented). The Court will first allocate the claim to what is known as a “track”, which determines how the case will be dealt with by the Court. These tracks are as follows:-
The small claims track
Claims in this track are dealt with quickly and as cheaply as possible, and without the parties having legal representation. The Court does not award legal costs to the winner, apart from the issue fee and expert fees (unless the Defendant has behaved unreasonably). If the Court decides that the claim is suitable for this track it will send the parties a short list of directions, including a hearing date. It will also require the parties to exchange a bundle of relevant documents, and also to exchange witness statements. It is best to number each page of these bundles, so that they can be referred to easily at the hearing. The hearing itself will take place in the District Judge's chambers, and normally the District Judge will give judgment (in legal proceedings it is spelled with one "e") at the end of the hearing.
The fast track
Cases in this track are allocated a "trial window" of a week or so when the case will be tried and normally the parties have to use a single jointly-appointed expert who reports to the Court. The trial window is normally 6 months or so away from the directions hearing, and as the trial can only last 1 day cases which will require more time but are still less than £50,000 in value will be allocated to the multi-track.
In fast track cases the Court will send out a listing questionnaire shortly before the trial window, which requests information about any further directions that the parties need to get the case ready for trial. The Claimant has to pay a further fee at this stage. Once the Court receives the listing questionnaires, it will set a date for the trial within the trial window, and also inform the parties where it will take place; this may not be the Court dealing with the case, as it depends on where a Judge and Courtroom are available. In fast track matters the parties may only get a few days notice of the trial, so it is very important to keep the Court informed of dates that are inconvenient for the parties or their witnesses.
Multi-track trials are now relatively unusual. They are restricted to complex high-value cases such as building disputes and severe personal injury claims. The directions that the Court will give are similar to the fast-track directions, but tend to be much more extensive to ensure that the case is presented at the eventual trial as efficiently as possible. The Court will usually permit the parties to use their own experts, and for them to give oral evidence at the trial. Unlike fast-track trials, no trial window is set at the beginning of the case. Instead, the Court will set a date for a listing questionnaire to be sent out to the parties, which requests information about the progress of the case Trials themselves may last many days, and judgment is usually reserved.
The Court order will also set a timetable that both parties must adhere to. This will give the dates on which witness statements, disclosure, and expert reports (if appropriate) must be dealt with, and the trial window or length of trial (depending on whether it is a fast track or multi-track case). It may also give directions for specific issues such as specific disclosure.
The directions order will set a timetable requiring the parties to deal with the following to prepare for the trial (directions are also given in small claims but the directions are much simpler):
Disclosure of documents (usually 14 days after the directions order). The parties exchange lists of these documents, and each party is obliged to disclose all documents which are relevant, whether or not they favour the party disclosing them. Failure to do so may result in heavy costs penalties, or even the case being struck out. The obligation is continuing, so if documents later come to light they must be disclosed immediately.
Exchange of documents (normally 14 days from disclosure). Each party is entitled to copies of documents from the other side's disclosure list, on payment of reasonable copying charges.
Witness statements from all relevant parties (normally 14 days from service of the disclosure lists). These must be in a particular form and must also contain a "statement of truth".
Expert reports (normally 56 days from service of witness statements, to allow the parties’ time to agree the expert, to instruct him, and for the report to be prepared). The Court will only allow expert reports to be used if it thinks it necessary, and will not usually allow their evidence to be given orally at the trial. Instead the Court will require the parties to use a single expert jointly appointed by both, and each side will be bound by the expert's opinion. The expert's fees are met jointly at the time the bill is sent-the party that wins the claim can recover its share when costs are dealt with.
You will prepare a list of documents in a standard form from the documents you wish to rely or have referred to. The list (N265) will identify all of these documents, and also indicate any documents over which you claim a right to withhold inspection ("privileged documents"), and documents that are no longer your control (and what has happened to them). The list will include a disclosure statement, signed by you. A disclosure statement is a statement setting out the extent of the search that has been made to locate documents, certifying that you understand the duty to disclose documents and that you have carried out that duty. This list is then sent to the other party in exchange for their list, and each party then has a right to have copies of any document in the other’s list.
What documents are to be disclosed
Standard disclosure requires you to disclose all documents in your possession (or have once been in your possession) the list must give details of both the documents on which you rely and also any documents that adversely affect your own case or support the other party’s case. The Court may also make an order for specific disclosure in some cases, in other words for documents of a particular sort or category This means that if they are aware of documents that should be disclosed you owe as a duty to the Court to do so.
What is a "document"
"Document" means anything in which information of any description is recorded. This therefore includes photographs, video recordings, and computer information on hard drive or removable media such as floppy disks. It also includes emails.
The duty of disclosure
Your duty to disclose documents is limited to documents that are or have been in your control. This means having physical possession of it, or a right to possession of it, or a right to inspect or take copies of it. A copy of a document that contains a modification, obliteration or other marking or feature on which you intend to rely or which adversely affects your case or another party’s case is treated as a separate document. Your duty of disclosure continues until the proceedings are concluded. If documents come to your notice at any time during the proceedings, you must immediately notify the other party of it. It you fail to comply with your duty, any order or judgment that is made in the claim could be appealed or set aside. There may also be very serious costs consequences if you fail to comply with these obligations.
You are not obliged to disclose documents that are generated by or in reasonable expectation of the claim itself (known as litigation privilege). There is also a category called legal privilege, which applies to all documents generated as a consequence of you seeking legal advice. This means that letters between you and your solicitors do not need to be disclosed, provided they relate to the claim that is being brought. It also applies to advices from Counsel and in some cases to experts; however it is very important to ensure that documents that are privileged are not carelessly distributed for instance by email-this can lead to privilege being lost, and your opponent can then seek an order forcing you to disclose them.
If, however, the documents are relevant to the dispute and were giving legal advice but were not generated by it, then they must be disclosed. For instance, if you bring a claim about your purchase of some land, then the other party’s solicitor’s file relating to the purchase is disclosable, but letters relating to the claim that is then brought by you are not.
Duty of search ( Claimant)
You are required to make a "reasonable" search for documents. What is meant by "reasonable" depends on a number of factors, including the number of documents that would be involved, the nature and complexity of the proceedings, and the significance of any document that is likely to be located during the search.
Where you have not searched for a category or class of document on the grounds that to do so would be unreasonable the disclosure statement must state this and identify the category or class of document.
Each party is required to give its evidence in the form of written witness statements, which contain all of the evidence that they will give at trial. These statements form part of the evidence in front of the Court, and will be read by the Judge. It is therefore extremely important that the statements contain all of the evidence that a party is going to rely on, as the Court will not allow further evidence to be given that is not in the witness statements. In most cases Witness Statements must be submitted and served 7 days prior to any hearing and served on the other party.
Applications to the Court
It may be necessary to ask the Court for specific orders from time to time-for instance, if the opponent has failed to comply with a direction. The request is made by application, which summarises the reason for the request and the order sought; the cost varies dependant on with a hearing or not normally.
It is possible to ask the Court to strike out a defence on the ground that it cannot succeed at trial-known as an application for summary judgment CPR 24. If successful this type of application can result in a judgment against the Defendant in a very short time after the defence has been filed, although often the Court does not have time to list the application for several weeks. In some cases the District Judge may decide that a defence cannot succeed when he allocates the case-and will strike out the claim at that stage. It is vital that constant checks are made to see if the other party have made application as sometimes the Court may be behind in serving you a copy.
Experts have a duty to the Court to report truthfully the entirety of their opinion, and this duty overrides their duty to the party instructing them. The expert's report must contain a declaration to that effect, in order to comply with the requirements of the CPR. Experts may be expensive, particularly if they are to give live evidence at the trial; it is for this reason that fast-track restricts expert evidence to a single expert and written evidence.
Barristers (or "Counsel" as they are often called) are used in a number of ways, depending on the type of case. In fast track cases their involvement may only come in to deal with the trial however Claimants have been known to call them for applications in certain cases. Barristers specialise in certain areas, and for more complex cases their involvement may come at the outset of a case for advice either in writing or in a meeting called a conference. They may also be used to draft legal documents such as the particulars of claim and defences if they are particularly complex.
The trial itself may be heard in the Court in which the claim began, or at some other Court depending on the availability of the Judge. The Claimant’s representative will open the case by explaining in fairly brief terms what the case is about, and will then call their witnesses to present their evidence. Once the Claimant’s evidence is concluded it is then the Defendant's turn to bring its evidence by calling their witnesses.
When a person is called to give evidence they are firstly given the oath, and they are then requested by their own representative to confirm that it is their statement, and that it is true, and they are also entitled to ask certain clarificatory questions. Their opponent is then entitled to ask questions about that statement in cross-examination. Once complete, the party’s own representative is allowed to ask questions arising from cross-examination (in re-examination).
Once the evidence has been heard, the parties then make closing submissions to the Judge; this may be given in speech form, but in complex cases this can be done in writing. In fast track cases the Judge will normally give their decision at the end of the case and then deal with costs; in complex cases judgment may be given in writing and delivered by post, and costs and so on will be dealt with at a later date at another hearing.
Offers to settle-part 36 offers
The CPR encourages the parties to settle the claim by negotiation before and during the proceedings. Both the Claimant and the Defendant may make offers to settle (these are not disclosed to the Judge hearing the trial). This is known as a "part 36 offer". These offers are made by formal letter and are automatically withdrawn after a certain period (which cannot be less than 21 days after they are made). After that date they can only be accepted if the parties agree or the Court orders it.
However there is a sting in the tail for a Defendant; in order for an offer from a Defendant to be effective, the Defendant must also offer to pay the Claimant’s “reasonable costs” up to the date the offer is accepted. It is therefore essential that any offer to settle is made as early as possible for two reasons. If the offer is accepted, the Claimant’s costs that the Defendant must then pay will be minimised; if rejected and the Claimant fails to beat it, the amount of costs that the Defendant will be able to recover from the Claimant will be maximised.
Both Claimants and Defendants can make offers, and they have different consequences when the case comes to Court. For a Claimant, if the Court awards the Claimant more in damages than his or her offer, then the Court may in addition award the Claimant indemnity costs, interest on those costs, and also interest on the damages. If the Claimant doesn’t beat their own offer then they will just get the amount ordered and interest plus their reasonable costs.
In contrast, if the Claimant fails to beat a Defendant's offer then they will get the amount ordered plus their costs up to the date they could have accepted the Defendant's offer, but they will have to pay the Defendant's costs after that date plus interest on those costs and their own, and they will include the costs of the trial.
To take an example, suppose a claim is worth £10,000. The Defendant could offer to settle the claim for that amount together with the Claimant’s reasonable costs even before proceedings are issued but the Claimant rejects it. If the amount finally awarded at the trial is £10,000, the Defendant will have to pay the Claimant the £10,000 but the Defendant can then ask the Court to order the Claimant to pay all of the Defendant’s costs from the last date on which the Claimant could have accepted the Defendant's part 36 offer. The Claimant will only get his or her reasonable costs up to that date.
If the parties have each spent £10,000 in legal costs getting the case to trial, then in the example the Claimant will get£10,000, but will have to pay £20,000 in costs. The Defendant will only have to pay £10,000 plus the Claimant’s costs up to the part 36 offer which are likely to be minimal.
For a Claimant the effect is even more dramatic; suppose the Claimant makes an offer to settle of £10,000 before the proceedings start and the case takes 3 years to get to trial, at which point costs are £10,000 on each side. If the award is £10,000 the Court can be asked to order the Defendant to pay interest on the £10,000 at up to 10% above base rate from the date of the Claimant’s part 36 offer. If the base rate is 5%, then the total interest could be as much as £4,500. In addition the Claimant will be able to claim costs on an indemnity basis plus interest on those costs at a rate not exceeding 10% above base rate. The Defendant would have to pay £14,500 plus £20,000 costs plus interest on the Defendant's costs.
As a result of these potentially draconian consequences, a part 36 offer early in the proceedings or even before them can be very effective.
Alternatives to litigation
The Civil Procedure Rules positively encourages (but does not require) parties to resolve their differences without the Court process. In particular a process known as Alternative Dispute Resolution may be appropriate. There is recent case law in which a party-though successful-did not get its costs because the Court concluded that it had unreasonably refused to attempt ADR. ADR may be a very informal meeting between the parties, a rather more formal discussion between them assisted by a professional mediator, or even what amounts to a mini-trial at which a professionally qualified expert makes judgments on the issues between the parties who are represented by Counsel and by solicitors.
Some types of case are assigned to specialist Courts, which have particular jurisdictions. Examples of these include the Chancery and Mercantile Courts, the Company Court, the commercial Court and the Technology and Construction Court. Many of these specialist Courts are in London, but the commercial and chancery Courts also have hearings in Birmingham and Manchester.
Day-to-day procedural issues are dealt with by District Judges in their private rooms at Court, known as Chambers. These hearings take place in private, and are normally attended by solicitors rather than barristers. They may even be dealt with on the telephone. District Judges have wide case management powers under the CPR, with the intention of meeting the overriding objective. Circuit Judges or Recorders usually conduct trials, although some District Judges also have the authority to hear fast track trials.
Appealing a decision
It is possible to appeal from judicial decisions, but to do so is usually expensive. It is necessary to show that a Judge's or District Judge's judgment was either wrong about the law that applied, or that the Judge made a mistake about the facts of the case which is relevant to the decision that was made. It is much more difficult to appeal on the ground of a factual error, as the appeal Court will normally regard the Judge that heard the evidence as being best placed to decide. It is not possible to appeal a case from the small claims track unless there is evidence that the Judge or District Judge was wrong about the law.
Time limits apply when appealing, and these tend to be short (usually 14 days). Depending on what kind of decision is appealed the Court that hears the appeal may be a Judge of the County Court, the High Court, or the Court of Appeal.
The Court does not enforce judgments itself; the winner or judgment creditor must do so. There is a large number of procedures available depending on what is likely to be most cost-effective, as all involve further legal costs to a greater or lesser extent. The debtor can also ask the Court for time to pay a judgment, although a company cannot do so. Common methods of enforcement are;
bailiffs. Under £5,000 the County Court bailiffs are used. Over £5,000 the case will be transferred to the High Court, and the High Court sheriff used. bailiffs have the power to seize goods under a judgment, and sell them if a judgment is not paid.
Attachment of earnings orders. If the debtor is working, the Court can order that a certain amount of the debtor's wages is paid to the creditor each month.
Charging orders. Restrictions. If the judgment debtor owns property, the Court can be asked to grant a charging order (which is rather like a mortgage) which can then be registered at the Land Registry. If the debtor wishes to sell the property the judgment debt must be paid first, so securing the debt. It is also possible to request the Court to sell the charged property.
Freezing orders or Third Party Debt Order. Not strictly a method of enforcement, but if the debtor is trying to move money out of an account-for instance following the sale of a property-the Court can order that the debtor's bank accounts be frozen up to the amount of the claim. A freezing order can also be applied to someone else's account containing the debtor's money, such as a solicitor's client account following the sale of a property. The remedy is expensive but is effective.
Statutory demands. This is the precursor to a bankruptcy petition (if the debtor is an individual) or a winding-up order (if a company). It is served giving the debtor 21 days to pay. The advantage of these two procedures is that the service of the statutory demand is quick and cheap, and is often effective if the debtor has the money to pay it. However, if the demand does not produce payment it will be necessary to consider a bankruptcy or winding up petition.
Bankruptcy/winding up. If a statutory demand is not satisfied then the next step is to present a petition for bankruptcy or winding up, as appropriate. The Court fee and deposit is quite expensive, but the hearing of the petition is usually relatively quick (about 8 weeks). If an order is made, then statute prescribes a list of the creditors who are paid out first; a judgment debt would rank last, with any other unsecured creditors.
If a claim is successful, the Court will usually order the losing party to pay the winner their "costs". What is meant by "costs" is a complex area, and has important implications for anyone contemplating or involved in litigation. The introduction of the Civil Procedure Rules has also radically changed how costs are ordered and assessed. Under the terms of the retainer between the solicitor and the client, the responsibility for paying the solicitor’s costs and disbursements such as barristers’ and experts’ fees rests with the client, whether or not the claim is successful. If an order for costs is made, unless the parties agree how much the costs will be, the Court will decide how much the loser should pay.
Litigation can be extremely expensive, especially if the case is complex and involves barristers and experts. It is for this reason that, if you have legal expenses insurance, it is very important to ensure that you notify your insurer of any dispute you become involved with as soon as possible-most policies are very restricted on when claims will be considered.
Normally the "winner" of a case is awarded the legal costs, but this does not necessarily follow. The Court has very wide powers to deal with the costs of a case in any way it feels is appropriate and this can often mean that the party that has behaved most reasonably has the best chance of getting their costs paid. Costs may also be ordered during the progress of the case if any applications have been made. The usual order is for the loser to pay the winners reasonable costs, to be assessed by the Court if no agreement can be reached.
The Court has the power to make any award of costs it thinks appropriate, and at any time a Court order is made. Consequently the Court may make costs orders during the proceedings, not just at the final hearing. Usually no order for costs is made in small claims apart from the issue fee and the fee of any expert instructed, unless one of the parties has behaved unreasonably. The rules also provide for "fixed costs" in some cases; for the issue of proceedings for instance, and also for some types of claim such as possession proceedings.
The normal rule is that "costs follow the event"; in other words, the loser pays the winner’s costs. However, the Court is required to take the conduct of the parties into account as well as who is successful, and make an order that does justice to the parties in the circumstances.
The Civil Procedure Rules impose a duty on the parties to proceedings to assist the Court in achieving the "overriding objective", which is to deal with cases justly. One aspect of the overriding objective includes saving expense, and cost. As a result, the Court may penalise a party that has not complied with the spirit of the Rules, by for example failing to serve a pre-action protocol letter if required. In addition the Court will take into account offers to settle and payments into Court. If a Costs order is made, it will state whom the "paying party" (usually the loser) and the "receiving party" (usually the winner) is, and also what basis of assessment is to be used if no agreement can be reached.
In fast track cases the Court performs the assessment at the end of the trial. In multi-track cases, or if a claim is settled during proceedings with an agreement that costs be paid by one of the parties (for instance if a part 36 offer is accepted), a schedule of the costs is sent to the paying party to try to reach agreement. If this is not possible then a costs draftsman prepares a bill of costs for assessment by the Court. Both the costs draftsman and the Court charge fees.
The CPR encourages the parties to negotiate, but ultimately the Court may be requested to assess the bill. The Court has to decide:-
Whether it is reasonable for the loser to pay for the work charged for; and
Whether the hourly rate charged by the solicitor is reasonable.
The Court will not require the loser to pay the winner if he or she has behaved unreasonably, by for instance telephoning or writing to his or her solicitor more often than is necessary to progress the case. Nor will the assessing Court regard a senior solicitor dealing with a simple case as being reasonable. Each Court area sets standard rates for solicitors of different levels of experience, and it may award a lower rate than is claimed in such a case. Similar principles apply when the Court assesses the amount claimed for barristers' and experts' costs.
The Court may decide that the amount the loser must pay in costs is less than the winner has paid to his legal team. As the Court tends to be conservative when it assesses costs, the loser is often ordered to pay only 75% or so of the winner's costs.
Even if a costs order is made, this does not guarantee that payment will be made; if it is not, the successful party may have to use enforcement methods to recover the money and may be unsuccessful if the loser does not have the means to pay. In addition, if the losing party has a Public Funding Certificate (which used to be called "Legal Aid"), the Court may still make a costs order, but may also order that payment of the costs will not be enforced without the Court’s permission.
These include barristers’ fees, Court fees and experts’ fees. Often a party's solicitor will require payment in advance of the disbursement being incurred, as it is usually the solicitor that is responsible for payment of these fees. these fee may be recoverable at the end of the case.
The Court will expect the parties to attempt to agree the costs between them, as far as possible. The receiving party will prepare a schedule of its costs and submit this to the paying party, and invite comments on it. Often the parties will not be far apart, and agreement may be reached. If no agreement can be reached, the receiving party must draw up a formal bill of costs which summarises precisely what was done and when. A costs draftsman normally does this, who will charge a percentage of the bill for doing so (normally 2%). This is then sent to the paying party, who must serve a formal response within 21 days, stating what elements of the bill are disputed. If no response is served, the receiving party may apply to the Court for a "default costs certificate". This is an order requiring payment within 21 days of the certificate, and can be enforced as a judgment against the paying party. If a response is served, the receiving party may either negotiate, or ask the Court to set a date for assessment. The receiving party must make the application for assessment within 3 months of the costs order, unless the parties agree an extension.
The basis of assessment
The Court must be satisfied that the costs that are being sought are not unreasonably incurred or unreasonable in amount. However there are two different bases of assessment that the court may order.
The usual order is that costs are assessed on the "standard basis". This means that the paying party must pay only an amount of costs that is "proportionate to the matters in issue"; in other words, it will not sanction a large bill for a small dispute. It will resolve any doubts it may have as to whether the costs are reasonably incurred, or reasonable in amount and proportionate, in favour of the paying party. In unusual cases the Court will order that costs are to be assessed on the "indemnity basis", which means that it is the receiving party who receives the benefit of any doubt.
The Court has the power to make a summary assessment of costs during the proceedings, without needing to go through the lengthy detailed assessment procedure. It is also required to do so at the conclusion of a "fast track" trial. The parties will both prepare costs summaries for the hearing, and serve these on each other prior to it. The Judge will consider the summary at the conclusion of the hearing and decide the amount of costs to be awarded.
If the parties cannot agree the costs, the receiving party will ask the Court to set a date for the detailed assessment of the bill. District Judges undertake the assessment, but in London the Supreme Court Costs Office deals with cases in the High Court. Representatives of both parties attend the hearing. The District Judge will consider the submissions of both parties and decide whether the work done was reasonably necessary, and if so, whether the time taken and the solicitor’s hourly rate claimed was reasonable (different rates apply in different parts of the country, and are set by the Court). Normally the Court will reduce a bill by about 15%, as a rule of thumb guide, on assessment. The District Judge will also decide which party should pay for the costs of the hearing itself, and summarily assess them as well. Any order made to pay a sum of money as costs is enforceable just like any other order.