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Process and rules for taking a case to court

This content applies to England & Wales

Processes and rules required for a client to take a case to court.

Introduction

Most claims can be started in the County Court.[1] The case may be transferred to a different court, particularly if there is to be a hearing.[2]

Court office and staff

Each County Court has an office which is normally open to the public from 10am to 4pm every day except Saturdays, Sundays and public holidays.

The administrative staff at the court office are responsible for tasks such as issuing claims, listing appointments and drawing up orders made in court. These staff are supervised by a court manager. All general correspondence to the court should be addressed to the court manager.

Application to court

To begin court action, a claim form is filled in by the claimant, returned to the court, a fee is paid (see the page on Court fees for more on these) and the court then serves documents on the defendant(s).

The Civil Procedure Rules provide for three ways of starting a case:

  • Part 7 - the general procedure
  • Part 8 - the alternative procedure
  • Part 55 for claims for possession of land.

The Civil Procedure Rules

All cases are governed by the Civil Procedure Rules (CPR). The rules are supplemented by a number of practice directions, which provide more detailed information on the relevant part of the CPR and set out procedures that aim to achieve consistency in practice.

The overriding objective of the CPR is to enable the courts to deal with cases 'justly'. Dealing with a case justly includes the following, so far as is practicable:[3]

  • ensuring that the parties are on an equal footing
  • saving expense
  • dealing with the case in ways which are proportionate:
    • to the amount of money involved
    • to the importance of the case
    • to the complexity of the issues, and
    • to the financial position of each party
  • ensuring that the case is dealt with expeditiously and fairly, and
  • allocating an appropriate share of the court's resources to the case, while taking into account the need to allot resources to other cases.

As well as rules and practice directions, advisers also need to check whether one of the Pre-action protocols applies to a particular case. There is a pre-action protocol for disrepair cases and for judicial review cases. Pre-action protocols outline the steps that the parties to a case should take before starting a claim. Courts expect parties to comply with the terms of protocols and may penalise a party who does not comply.

Part 7 procedure

The Part 7 procedure is normally used for starting most claims.

Completing the claim form

For claims under Part 7 the claim form is form N1.[4]

Form N1 includes:

  • the claimant's name and address
  • the defendant's name and address
  • brief details of the claim
  • the value of the claim
  • the particulars of claim.

The claim form can be obtained free of charge from the client's local court, or from HM Courts and Tribunals Service. Each form is numbered clearly and explains how it should be completed.

The appropriate fee for starting court proceedings must be paid when the claim is filed at court (see Court fees). The court then enters details of the claim in the court records, gives the claim a number called the 'claim number', and dates the claim form. This is called 'issuing a claim' and it means the case has formally commenced.

Serving the claim form

The court sends the claim form to the defendant along with forms for acknowledging service, admitting the claim and defending the claim. (See below for more information about the defendant's response). This is known as 'serving' and in general the claim form must be served within four months of the date of issue.[5] The court has the power to extend this period where the claimant has taken 'reasonable steps' to serve in time.[6]

Usually, the court serves the claim form on the defendant by first class post, but the claimant can notify the court that they have served the claim themselves.[7] Where the claimant does so, particular methods of service and steps required are set out in the Civil Procedure Rules.

Service may be by first class post, delivery to an address, personally on the defendant or any other method agreed in a contract by claimant and defendant.[8] Service by email or fax is also allowed, but only where the defendant or their solicitor has indicated that they are willing to accept service in this way.[9]

The Supreme Court has held that even where a claimant has previously corresponded with the defendant by email, this is not necessarily an indication that service of a claim form will be accepted by electronic means.[10]

Where there is 'good reason' to do so, the court can authorise service by a different method than those above and can do so after the event.[11] In the courts' consideration of what is good reason, most claimants (even litigants in person) will be expected to understand the rules on service.[12]

If the claimant serves the claim form they should file a certificate of service with the courts within 21 days unless all the defendant has filed an acknowledgement of service by this time.[13]

Procedure and content of the particular of claims

The particulars of claim are the details of the reason for the claim. If practicable, the particulars of claim should be filed by the claimant with the court at the same time as the claim form. If it is not practicable, they should be set out in a separate document and show the name of the court, the case number and the title of the proceedings. The claimant must send it to the defendant within 14 days of the date when the claim form was served.[14] Within seven days of serving the particulars of claim on the defendant, the claimant must send a copy of the particulars of claim to the court together with a certificate of service, which states that the particulars of claim have been served on the defendant.[15]

It is important for the claimant or their solicitor to ensure that the facts in the particulars of claim are clear and accurate so that the court has as much information as it needs to decide the issue. The language used in the particulars of claim does not need to be legalistic.

The exact content of the particulars of claim partly depends on the type of claim. However, all particulars should set out:

  • a chronology of relevant events
  • details of the claim
  • the legal basis for the claim
  • what the claimant is asking for

Statement of truth

The claim form, and if served separately, the particulars of claim, must be verified by a statement of truth. A statement of truth is a statement that the party believes that the facts stated in the claim form (or defence, see below for more information) are true.[16] It must be signed by the party or their litigation friend or solicitor.[17]

If a statement of truth is made without an honest belief in its truth, the person making the statement may face sanctions from the court for being dishonest or misleading, which can include being sent to prison (this is known as being 'in contempt of court'). The statement of truth should not be signed by a lay advocate.

Next steps for defendant

Receipt of claim form

Once the defendant receives the claim form, they must:

  • file and serve an admission within 14 days, or
  • file an acknowledgement of service within 14 days, or
  • file a defence within either 14 days of receiving the particulars of claim, or if an acknowledgement of service has been filed, within 28 days of receiving the particulars of claim.

The defence must contain a statement of truth.

The defendant's time for responding begins when the particulars of claim are served. If the defendant fails to file either a defence or an acknowledgement of service in the time allowed, the claimant can ask the court to allow the claim in full. This is known as a default judgment.

Admitting the claim

The defendant can admit all or part of the claim. If the claim is for a specified amount of money, they can pay it immediately or request time to pay it. If the claimant requested a remedy (for example, requesting the landlord to carry out repairs), the defendant can admit liability and say when the remedy will be given.

Acknowledgement of service

The acknowledgement of service confirms receipt of the claim form and allows the defendant to state that they intend to defend all or part of the claim. Returning the acknowledgment grants a further 14 days to file a defence or admission.[18] The acknowledgement of service form is also used where the defendant disputes the court's jurisdiction.[19] For Part 7 cases, form N9 is the acknowledgement of service form.[20] If the defendant doesn't file a defence after filing an acknowledgement of service, the claimant may be able to obtain a default judgment (see above).[21]

Defending the claim

The defendant can file a defence form with the court. This is a document containing the reasons why a claim should not succeed. It can include both legal and factual arguments on behalf of the defendant and must answer all the points raised by the claimant in their claim form. Any point not specifically dealt with in a defence will be assumed by the court to be admitted by the defendant.

Any defence must contain a statement of truth.[22] 'Bare' or 'holding' defences (where the defendant merely denies all the allegations in the claim form without providing any reasons for the denial) are not permitted.[23]

The defendant can also make a counterclaim, which is a claim brought by a defendant in response to the claim being made against them by the claimant. For example, a council tenant defending possession proceedings on the basis of rent arrears may counterclaim for damages for breach of repair.

Settle case out of court

The defendant can approach the claimant with suggestions of how to settle the claim without continuing the court action. Advisers should be aware that in some situations an out of court settlement may be the best outcome for the client and is likely to reduce costs.

There is also a special procedure called the Part 36 procedure, where either party may make an offer to settle a claim. If refused, a Part 36 offer may have significant costs consequences.[24]

Defendant does nothing

If the defendant does not reply within the time limit, or at all, the claimant can request the court to make an order against the defendant (known as a default judgment). The procedure and availability of this varies according to the remedy sought in the claim and whether the defendant acknowledged service of the court papers.[25]

The Part 8 procedure

The Part 8 procedure is used where a rule or practice direction requires or permits it, or where the claimant seeks the court's decision on a question that is unlikely to involve a substantial dispute of fact.

When part 8 is used

The Part 8 procedure is used for the following claims:

  • where a rule or practice direction requires or permits the use of the Part 8 procedure, or
  • where the claimant seeks the court's decision on a question that is unlikely to involve a substantial dispute of fact.

The following rules do not apply to Part 8 claims:

  • Part 16, which deals with procedures for claim forms and particulars of claim.
  • Part 15, which deals with filing a defence and making a counterclaim.
  • Part 26, which deals with the procedure for allocation to a track (but see below).

However, the information concerning statements of truth, covered below, is relevant to Part 8 claims.

The practice direction to Part 8 sets out those cases that may and those that must be brought under Part 8.

Fixed date procedure

Within Part 8 there is also a procedure (called the fixed date procedure), which must be used in certain cases, for example claims under the Protection From Harassment Act 1997. Its use is optional in some other cases.

Fixed date cases are those where the court sets a final hearing date (also known as the 'return date') when it issues the claim form instead of waiting to fix a date after the parties have complied with directions. This is because the cases are considered to be straightforward. At least 21 days' notice of the hearing must be given to both parties.[26] The defendant is not required to file a reply, acknowledgement of service or a defence to the court on receipt of the court papers.[27] At the hearing, the court can hear and deal with the claim or give case management directions concerning how the case will be dealt with.[28]

Claim form

In certain cases the Civil Procedure Rules specify which form must be used to commence the claim, for example an application for an injunction under the Housing Act 1996.[29]

If no form is prescribed, the Part 8 claim form N208 must be used.

The claim form must state the question the claimant wants the court to decide and the remedy sought. The claimant must file any written evidence on which they intend to rely when they file the claim form.[30] No written evidence of the claimant or defendant may be used at the hearing unless it was filed with the court and served on the other party, or the court has given permission at the hearing for it to be used.

Acknowledgment of service

The defendant must file an acknowledgement of service not more than 14 days after the service of the claim form and file any written evidence upon which they intend to rely.[31] If the defendant fails to file an acknowledgement of service, they may attend the hearing but may not be allowed to speak without the court's permission.[32]

A defendant who objects to the use of the Part 8 procedure, for example, because there is a substantial dispute of fact in the case, must state their reasons when filing the acknowledgement of service.[33]

A defendant who wishes to make a counterclaim has to apply for the court's permission.[34]

Allocation to a track

The claim will be treated as if it has been allocated to the 'multi-track'.[35] The court may give directions for the management of the claim as soon as the claim is issued, or when the acknowledgement of service is filed or when the time for filing the acknowledgement of service has expired. The court may fix a hearing date on issue or may convene a directions hearing before giving any directions.[36]

[1] Civil Procedure Rules, Practice Direction 7.

[2] Civil Procedure Rules, rules 30.2 and 30.3.

[3] Civil Procedure Rules, rule 1.1.

[4] Civil Procedure Rules, rule 7.2 and Practice Direction 4.

[5] Civil Procedure Rules, rule 7.5.

[6] Civil Procedure Rules, rule 7.6.

[7] Civil Procedure Rules, rule 6.4(1).

[8] Civil Procedure Rules, rule 6.5 and 6.11.

[9] Civil Procedure Rules, rule 6.3(1)(d) and para 4.1 Practice Direction 6A.

[10] Barton v Wright Hassall LLP [2018] UKSC 12.

[11] Civil Procedure Rules, rule 6.15.

[12] Barton v Wright Hassall LLP [2018] UKSC 12.

[13] Civil Procedure Rules, rule 6.18(2)(a).

[14] Civil Procedure Rules, rule 7.4.

[15] Civil Procedure Rules, rule 7.4(3).

[16] Civil Procedure Rules, rule 22.1(4).

[17] Civil Procedure Rules, rule 22.1(6).

[18] Civil Procedure Rules, rule 10.1(3)(a).

[19] Civil Procedure Rules, rule 10.1(3)(b).

[20] Civil Procedure Rules, Practice Direction 10.

[21] Civil Procedure Rules, rule 12.1.

[22] Civil Procedure Rules, Practice Direction 2.1 to Part 15.

[23] Civil Procedure Rules, rule 16.5.

[24] Civil Procedure Rules, Part 36.

[25] Civil Procedure Rules, Part 12.

[26] Civil Procedure Rules, Practice Direction 8.10.

[27] Civil Procedure Rules, Practice Direction 8.12.

[28] Civil Procedure Rules, Practice Direction 8.13.

[29] Such injunction applications are subject to a specialised Part 8 procedure: Civil Procedure Rules rule 65.2 - 65.7.

[30] Civil Procedure Rules, rule 8.5(1).

[31] Civil Procedure Rules, rule 8.5(3).

[32] Civil Procedure Rules, rule 8.4.

[33] Civil Procedure Rules, rule 8.8.

[34] Civil Procedure Rules, rule 8.7 and Practice Direction 20.

[35] Civil Procedure Rules, rule 8.9(c).

[36] Civil Procedure Rules, Practice Direction 8.4.1.

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