Issuing a claim

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Issuing court proceedings against another person, company or even a state requires a prospective claimant to seriously consider their options before they proceed.

Court proceedings (often referred to as litigation) are usually commenced where there is no agreement as to how to resolve such disputes, or one party possible denies any dispute exists.  Court proceedings should be the last recourse for a dispute.

Make sure you have tried to settle the claim before issuing

At Francis Wilks & Jones we have comprehensive experience of commercial litigation and how to resolve such disputes and the alternatives.  It is always sensible to try and settle a claim before legal proceedings – and we always speak to our clients about this option.  For example, if you are about to issue a claim – have you first considered the following

• alternate dispute resolution (ADR)
• arbitration
• mediation

However, if none of the above is possible, then the next logical step is to issue a claim.  Beforehand you are required to set out your claim in writing to your opponent (and could face penalties if you fail to do this).  We can help ensure you comply with you Pre-Action Protocols obligations before you issue your claim.

Main types of legal claim

The Civil Procedures Rules 1998 (as amended) (the “CPR”) and the Protocols set out what must be followed when commencing a litigation claim (and thereafter).

The two main types of commercial litigation claim are brought under

• Part 7 of the Civil Procedure Rules (Part 7 claims); or
• Part 8 of the Civil Procedure Rules (Part 8 claims).

 The difference is set out in summary below.

Some legislation sets out differences from these options to issue a claim and may carve out some parts of the Civil Procedure Rules.  For example, in insolvency proceedings a claim form is often replaced with a simpler application, and there are no formal pleadings (as with Part 8 claims), but the Court may later require pleadings (as with Part 8 claims).

• Some claims may be issued by way of a petition, which is a more formal request of the Court but has the same effect to cause a threat to the responding party. 
• For example, a winding-up petition is a request that the Court wind-up a company based on an unpaid debt or other public interest concerns, which effectively is a claim which the company could respond to and oppose.

There are many variations of this exception, dependant on what type of claim under what type of law is being brought, but for simplicity we would only address Part 7 and Part 8 claims here, which comprise the vast majority of commercial litigation claims.

Part 7 claims

Part 7 claims are brought where there is a substantive dispute as to fact between two (or more) parties.  The process is very different with the claim form initially being accompanied by a “Particulars of Claim” which is a legal statement of what events lead to the claim and how the claim is set out. A particulars of claim is prepared in accordance with Part 7 of the civil procedure rules, rule 7.1.

A Particulars of Claim is not evidence but a statement of the claimant’s case.  There is no third-party testimony or documents produced (although often the main document in support of the claim is often attached, for example the contract in a contract dispute). 

The Defendant then files their defence (Part 7 of the civil procedure rules, rule 7.8) responding to each point of the Particulars of Claim and either

• accepting it (removing any dispute);
• denying it (meaning that the case may centre around the Court determining on the evidence whether this is correct); or
• putting the claimant to proof (requiring the claimant to demonstrate evidence of this, upon receipt of which it would then arguably be admitted). 

The claimant will thereafter have a chance to have the final word – referred to as the Reply.  

This then concludes what are referred to as the “Pleadings” and the case then continues – with each party to the claim then required to undertake various key steps such as

• attending the case management conference as part of the case management process;
• complete various court documents;
• completing disclosure of documents;
• preparing witness statement evidence and exchanging evidence;
• dealing with expert evidence; and
• trial.

Part 8 Claims

Part 8 claims are different to Part 7 claims in that

• they do not always comprise a dispute of fact; and
• the claimant is instead seeking an order which may or may not be for some type of non-monetary relief; or alternatively
• the court is being invited to determines the losses which the defendant must pay.

Part 8 proceedings are far simpler.  With a Part 8 claim the claim form (or application) is accompanied by the evidence in support of the claim, setting out the material relied on, the wrong suffered and the loss or remedy claimed.

The defendant responds with their own evidence in answer and there may or may not be further evidence provided by the claimant.  Then the matter proceeds to trial.

Of course, as with all litigation proceedings, further steps could be taken including

• expert evidence,
• Part 18 requests for information,
• amendments to the claim or defence and
• a myriad of other interlocutory proceedings (ie separate applications during the course of the claim). 

Whether these arise largely depends on the individual circumstances of the case.

Instructing Francis Wilks & Jones

Whether you have a Part 7 claim or have a Part 8 claim, it is important to get advice early to ensure you have both complied with all requirements prior to issuing a claim, and that you have correctly drafted the claim documentation.

A mistake at this point will cost you considerably more as you get further down the line and is almost certainly likely to drive the costs of any litigation claim higher.

If you require any guidance or assistance with issuing a claim, please do not hesitate to contact us. Speak to our friendly team of lawyers today.

I have found FWJ to be perceptive, to the point and realistic. They have been able to assimilate and forcefully defend a very aggressive claim with very limited historic information.

A client we advised on a complicated property and partnership dispute