The procedure for issuing a claim and filing a defence are the same as for small claims. The court will usually allocate claims between £10,000 and £25,000 to the fast track. Thereafter procedures are more complicated than for the small claims track and the consequences of losing are more significant.
Before the hearing
If your case is allocated to the fast track, you will an allocation order that will tell you what you have to do to prepare for the trial. These instructions are called ‘Directions’ and will give you a series of dates to do various matters including disclosure, witness statements, returning the completed listing questionnaire to the court, and the trial date or trial period.
A typical timetable might be:
Disclosure (followed by inspection): 4 weeks
Witness statement: 10 weeks
Listing questionnaires filed: 22 weeks
Trial: 30 weeks with dates running from the date of the directions court order
If any aspect of the defence is not clear, you can ask for additional information or clarification. You should first write to the defendant with your request, asking for a response within a specified reasonable time period. If you do not get a response, you can apply to the court for an order to give the information. If you make the request in a letter, the letter should not also deal with other matters.
Disclosure means telling the other party about any documents you have or have had in your possession that you are required to disclose. The court may order standard disclosure or it may direct that no disclosure take place or it may specify the documents, or classes of documents, which the parties must disclose. Standard disclosure means you must disclose documents which support, undermine or oppose your claim and those which support the defendant’s case. You must make a reasonable search for these documents.
Inspection is when you look at the documents on the other party’s disclosure list and then request copies of certain documents. You must provide each other with copies of documents if requested, on payment of copying charges. You do not have to show the defendant documents that are ‘privileged’. Usually these are documents created when you are planning litigation or because they are correspondence between you and your solicitor about your case.
The listing questionnaire
The court will send you the listing questionnaire and the notice of date for returning the listing questionnaire to court. The listing questionnaire will ask for information to help the court fix a date for trial, to confirm the estimated length of trial and to set a timetable for the trial itself.
The court will send you an order setting out any further directions the judge gives. You will be sent a notice of trial date not later than 21 days before the trial is due to start.
What happens at the hearing?
The hearing is normally in public. A judge will hear your claim. You may speak for yourself or be represented by a solicitor or barrister. You cannot be represented by any other representative, but the judge may allow you to be accompanied by a friend to take notes, quietly make suggestions and give advice (this is sometimes referred to as a ‘McKenzie friend’).
Witness statements must have been exchanged before the hearing for any witnesses to be called. Only evidence in the statement can be given unless the judge gives leave for other evidence to be given. Witnesses must normally be called in person.
At the end of the procedure, the judge may give his or her decision immediately or decide to give the decision later. If ordering one party to pay costs to another, the judge will normally assess them on the same day. Parties should exchange details of costs with each other before the trial. The costs that can be claimed for legal representation have specific limits.
After the trial, the court will send you an order (judgment), setting out the judge’s decision and any order for costs that was made.
You must pay court fees unless you are entitled to fee exemption or you can show that paying the fee would cause undue hardship because of the exceptional circumstances of your case.
You must pay a fee to start your case. You must also pay a fee when your case is allocated, when you return the listing questionnaire and before the final hearing date. Other fees are payable if you make other applications to the court.
If your claim is dealt with under the fast track and you win your claim, you will normally be entitled to have some of your costs (including costs of legal representation) paid by the defendant. Equally, if you lose your claim, you will normally be ordered to pay some of the other side’s costs. In each case, this will be set out in a costs order.
You should be prepared for the possibility of paying the other side’s costs and should factor this in as a consideration when deciding whether to make a claim, or, if an offer of settlement has been made, in deciding whether to settle your claim.