If Court proceedings are issued to recover a business debt owed, the Defendant can defend the Court proceedings.
The Defendant has 14 days from when the Court proceedings are served on it to notify the Court whether the Court proceedings will be defended.
This is done by the Defendant filing with the Court what is known as an Acknowledgment of Service.
After that, the Defendant typically has another 14 days to file with the Court a Defence disputing part or all of the claim, and a Counterclaim could also be issued.
For the purposes of this dispute resolution blog, we will assume that the Defendant has filed a Defence disputing the whole of the claim on the basis that you, the Claimant, failed to provide the goods or services promised and, therefore, the Defendant does not intend to make any payment.
Application for summary judgment or strike out
Summary judgment and strike out is a procedure by which the Court may decide a claim or a particular issue without a trial.
The aim of the procedure is to promote the quick determination of cases, avoid long-running litigation and save costs.
The Court may give summary judgment against a Defendant on the whole of a claim or on a particular issue if the Defendant has no real prospect of succeeding on or defending the claim and there is no other compelling reason why the case or issue should be disposed of at trial.
Strike out is a procedure related to summary judgment.
The Court may strike out a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for defending the claim.
Typically, an application for summary judgment or strike out should be made before or on the filing of the Directions Questionnaire, but it can be made at a later stage.
The Court may also initiate summary judgment or strike out itself, usually when the Court has seen the Defence and before any Case Management Conference (CMC).
If the claim is defended in any way, the Court will send both parties a Directions Questionnaire for completion.
This questionnaire has to be completed by both parties to assist the Court in deciding which track the claim should be allocated to.
Generally speaking, claims worth less than £10,000 are allocated to the small claims track, claims worth between £10,000 and £25,000 are allocated to the fast track and claims worth more than £25,000 are allocated to the multi-track.
There are other factors which the Court will take into account when deciding which track a claim should be allocated to, such as the complexity of the claim, the number of parties, the remedy sought, the amount of oral evidence required and the importance of the claim.
Alternative Dispute Resolution (ADR)
When completing the Directions Questionnaire, the parties are asked to confirm whether they are willing to engage in ADR.
There are many different forms of ADR, including mediation, arbitration, adjudication and Part 36 offers.
For more details, please see our previous blog on alternative dispute resolution.
It is our experience that most business debt recovery claims are settled without the need for a trial.
The Court will make directions as to the way the claim is to be conducted and to set the future timetable up to trial.
These directions will either be made at a Case Management Conference (CMC) or on paper without a hearing.
For the purposes of this blog, we will assume a CMC will take place.
Prior to any CMC, the parties need to try and agree on appropriate directions for the management of the case.
However, please note that even if the parties agree on directions, the Court will not just “rubber stamp” any agreed directions.
Whilst the Judge will try and make an order along the lines that the parties have agreed, the Judge will ensure that the agreement takes into account all of the important features of the case.
It is often the case that when the parties’ legal representatives discuss matters with the Judge at the CMC, the parties are often content with a different order.
Future steps for which directions are normally given are:
- The filing and serving of any further information required to understand the claim;
- Disclosure of documents relevant to the claim;
- Exchange of witness statements;
- The provision of any expert evidence; and
- The fixing of the trial.
Preparing for and managing a trial is very important and can be one of the most stressful parts of the litigation process for both parties and their legal representatives.
Those participating in the trial normally include the Judge, witnesses and the parties’ legal representatives (typically both solicitors and counsel).
A few months before the trial, the Court will ask the parties to complete a Pre-Trial Checklist.
This Checklist seeks:
- Confirmation that the parties have complied with all directions;
- Information about how many factual witnesses will give evidence at trial;
- Information regarding matters to be addressed by expert witnesses; and
- An updated/confirmed time estimate for trial.
After Pre-Trial Checklists have been prepared, the Court may list a Pre-Trial Review Hearing (PTR).
A PTR is more likely to be held if:
- There are significant matters in issue between the parties;
- The claim is substantial; and
- There are any matters which the Court needs to deal with prior to trial, such as the trial date and timetable.
Often the most time-consuming task is the preparation of trial bundles.
Trial bundles typically need to contain:
- All statements of case;
- A case summary and chronology of events;
- All witness statements relied upon as evidence;
- All experts reports;
- All orders made by the Court; and
- All other documents necessary for the claim to be determined.
Your solicitor will also advise you on the logistical arrangements for the trial and what to expect at the trial.