What to Expect: A Claim Chronology
Whether you are suing someone or being sued, or being called as a witness, a claim is a
complicated legal process, and it can be full of unpleasant surprises and frustrating delays.
Don't forget, there are at least two parties to every action, and that means the schedule
and the events that take place can be out of your hands. Nonetheless, some things happen
in the same order in most litigation, and you can at least get a general idea of what's likely
to happen. It will also help to know some of the words and phrases that come up in a claim.
The following chronology gives a general idea of how a claim proceeds. Your action may
be different because of differences between rules of civil procedure. Your Solicitor can
help you understand exactly how your claim will fit with this chronology-remember,
your Solicitor works for you, and should clearly explain every step of the legal process.
A civil action (as opposed to a criminal or family proceeding, for example) begins with a
Particulars of Claim. A Particulars of Claim is a legal document that lays out the claims that
the Claimant (the person or business bringing the claim) has against the Defendant
(the person or business being sued). Typically, a lawyer will prepare this document.
A civil action is officially commenced by serving a Particulars of Claim on the defendant.
Service can be done in various ways including personal service (i.e. giving a Particulars
of Claim to the defendant personally) and sending a Particulars of Claim to the defendant
by first class post.
The Defendant has to acknowledge the claim within 14 days, and file the Defence at
Court within 28 days. The Defence says what portions of the Particulars of Claim, if any,
the Defendant admits to, what the Defendant contests, what defences the Defendant
may have, and whether the Defendant has claims against the Claimant or any other party.
If the Defendant doesn't answer the Particulars of Claim, the Claimant may apply for the
Court to enter a default Judgment against the Defendant. If the Defence contains a
counterclaim or a third-party complaint, the party against whom that claim is made also
has to answer within a certain time.
The parties exchange documents and other information about the issues relevant to the
litigation, by a process called Discovery. Discovery can take three forms: written questions
(usually Interrogatories) which must be answered under statement of truth; document
production; and Depositions, which are formally transcribed and sworn statements taken
in front of a Court reporter or other Court officer. The information is used in preparing
the case for Trial.
Note: If you are being called as a witness rather than involved as a party, discovery is the
first of the phases during which you may get involved. Typically, third parties are involved
in depositions, although in many jurisdictions there are provisions for written discovery
and document requests to non-parties. If you do not want to be involved in discovery as
a third party, and have a legally valid reason, you should consult an Solicitor.
Sometimes, the parties can voluntarily resolve all their issues through alternate dispute
resolution such as mediation or a negotiated settlement. The parties can also agree to
binding arbitration, and some contracts (insurance contracts and construction contracts,
for example) require binding arbitration. Sometimes Judges will express a wish that
litigants in civil actions go through alternative dispute resolution in some form.
Note: If a settlement is reached, the settlement agreement resolves all issues between
the parties. Typically, the Court is either not involved or is involved only informally.
Judicial approval of civil settlements is usually only required when one of the parties is
a minor, or when there is a class action, or in other special circumstances that do not
typically arise in most litigation.
In some cases, one or both of the parties will try to get rid of the case, or a portion of it,
by applying for Summary Judgment. Basically, the parties present to the Court those issues
that are beyond doubt and ought not to await a Trial before obtaining a Judgment. This is
a hard concept for lay people. The theory is that, if a claim or defence cannot possibly win,
it is better for the Judge to deal with it before wasting time or money. The level of proof
required for Summary Judgment is high; and if the party seeking Summary Judgment is
unsuccessful, the Court may order him / her to pay the costs of the other party.
If the parties do not reach an agreement, and if the matter is not disposed of by Summary
Judgment, the case will go to Trial.
Trial is the other point at which third parties can become involved. The Solicitor for the
party who wants a witness to attend Trial may subpoena the witness for Trial if the witness
is unwilling to attend. There are requirements for subpoenas, both in terms of form and in
terms of notice and payment to a witness. Typically, notice and payment requirements are unrealistically small. A witness should consult a Solicitor if he or she cannot attend,
or if (as in the case of a professional) attending will cost him or her a lot of money.
At Trial, the Solicitors (or the parties, if they are not represented) present evidence and
arguments for each side, and the Judge decides the unresolved issues. Once the Judge
has reached a decision, the Judge will order that Judgment be entered for the party who
wins. The Judge may also order that one party pay the other's legal fees.
Either or both parties can appeal a Judge's decision to a higher Court. But it is unusual
for an appeals Court to overturn a Judge’s decision.
It's hard to say how long all these steps will take in your case. The entire process can take
from as little as 9 months, to as long as years. In the case of witnesses, you can be called
to testify at any time from shortly after the event to the better part of a decade after it
happened. Generally speaking, the less money at stake, and the more issues that can
be resolved before Trial, the smoother and faster the claim will go.
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