The Litigation Process
The litigation process is often complex and involves significant detail from start to finish. This article will shed light on the process and will provide you with a clear understanding of each step of the proceedings.
Litigation and disputes can be difficult, especially if you are not represented by a competent lawyer. Unlike the common misconception that court proceedings only take a few days, the reality is that the litigation process can take several months and, often, up to several years.
Enforcing your rights through litigation should ideally be the last resort after you have exhausted all your options to resolve the dispute and have no other choice but to take the matter to court.
The steps below will explain the general litigation process:
The court sets a timetable, which entails a complete number of steps requiring extensive work and a comprehensive list of documents, even for simple matters.
1. Before Legal Proceedings
Communications & Claims
Business and commercial disputes often start with communication between the involved parties. It is common and advisable to appoint a lawyer as early as possible to help you ascertain your legal position and available options. Once a competent lawyer is appointed, they will represent you and take control of all correspondences with the other side’s legal representatives.
As an alternative method of dispute resolution, Mediation is common for the parties involved in a dispute to settle on a resolution before issuing court proceedings. In fact, Mediation can often be the cheaper and wiser option. This resolution process is generally informal, whereby the parties are assisted by one or more impartial third party mediators in their efforts towards reaching a settlement.
2. Starting Legal Proceedings
If the mediation efforts do not result in a settlement or if a party chooses not to mediate, legal proceedings can take place. The preparation for Court hearings and the drafting documents are generally conducted by a lawyer working alongside a barrister. The barrister’s role is to assists with the strategy and the various stages of court proceedings, including court appearances.
Your lawyer will brief the barrister before a hearing which involves providing a comprehensive summary of your case and copies of all the essential documents. Your lawyer should brief the barrister (counsel) as early as possible to ensure they are prepared and aligned on your legal position and strategy.
The pleadings stage is where each party establishes their legal positions in formal legal documents. These include:
- Statement of claim: proceedings often begin with an initial claim, referred to in most courts as a statement of claim. The party filing a claim is named the plaintiff or applicant;
- Defence: the other party, called the defendant or respondent, is allowed a period of twenty-one to twenty-eight days to organise and file its defence;
- Cross-claim: the defendant can also file a counterclaim in the event it has a claim against the plaintiff;
- Defence to cross-claim: if a defendant files a cross-claim, the plaintiff must also file a defence.
This is the first set of court attendances before the hearing starts. These are administrative attendances to set a timetable for the remainder of the proceedings. Depending on the court, this first hearing may be referred to as a directions hearing or a pre-trial review.
An interlocutory hearing is essentially a small hearing with the purpose of dealing with a procedural matter, interim relief or security for costs relating to the main proceedings. Interlocutory hearings take place when the parties do not consent to a procedural matter, such as amending pleadings, making further orders for discovery, or applying for an urgent injunction.
In many lists of the Supreme or District Court, it is expected to that Mediation has been considered prior to attend any status conference or directions hearing. Whilst mediation is usually voluntary, the court can, in certain circumstances, order the parties to attend Mediation as part of the timetable of the proceedings.
As part of providing the court with evidence, parties can (and often do) request documents from each other as well as third parties to use as evidence to support their position. This typically involves:
- discovery, where the parties ask each other to provide certain documents relating to their claim or defence. The court timetable allows time for parties to discover and review those documents; and
- subpoenas, through which one party can request third parties to provide documents relevant to the proceedings.
Evidence is provided by the parties in accordance with the Evidence Act 1995. Parties gather written evidence they will use to prove their case or defence. The process starts with the plaintiff filing its evidence first, followed by the defendant. The evidence can be in the form of an affidavit (sworn statement) and accompanied by documents. Once prepared, affidavits are filed with the court and served to the other party.
Parties can also use experts to provide evidence on matters that require a certain level of expertise, such as construction, cybersecurity, or financial matters. Expert evidence has to comply with certain requirements to demonstrate that the expert has the appropriate expertise.
Court Attendance: The Hearing
Hearings can happen over one day but often extend to many weeks, depending on the complexity of the dispute. In most cases, barristers represent their parties in court, with the lawyer also in attendance.
After the hearing, the judge will deliver their judgment or orders. Sometimes they deliver their judgment verbally and on the spot. However, more commonly, a written and detailed judgment is published at a later date. If there are any cost orders, the judgment will include and specify that also.
In most courts, a party can appeal the court’s decision. Lodging an appeal usually has a time limit. An appeal can only be filed based on legal ground relating to the point of law. The appeal will then involve a repeat of the first hearing process, with further legal submissions made by the plaintiff and defendant.
As a business owner, there is a high chance that at some point, you will consider suing someone, whether it is to recover a debt, file an intellectual property infringement, seek damages for a breach of contract or even to resolve an employment dispute.
If you are considering taking legal action or finding yourself in one, it is critical to understand the procedures and steps involved. But more importantly, it is crucial to find and hire a competent and trusted lawyer as soon as possible to maximise your chances of getting the outcomes you require.
At Lazarus Legal, our lawyers and litigators can help you with several litigation matters such as:
- Construction disputes and security of payments
- Civil litigation and obtaining urgent injunctive relief
- Debt recovery and enforcement of a judgment
- Competition and Consumer Law claims
- Insolvency and bankruptcy law
- Franchising disputes
- Contractual disputes
- Company and shareholder disputes
- Property and leasing disputes
- Intellectual Property disputes
- Commercial and corporate disputes
- Debt recovery and enforcement of a judgment
Get in touch, and one of our expert lawyers will be there to assist you and discuss your legal position and options.