How to issue/start court proceedings

Before issuing a claim at court, in most cases it is normally appropriate to send what is known as pre-action correspondence to the intended defendant.  The contents of this pre-action correspondence is governed by the Pre-Action Protocols which are contained in the Civil Procedure Rules (CPR).  The CPR governs the conduct of all litigation in England and Wales. 

The Pre-Action Protocols differ depending on the type of claim.  For example, there are Pre-Action Protocols relating to debt claims, professional negligence claims, construction and engineering disputes and media and communications claims.  Whilst all of the Protocols have their own requirements and timescales, the general theme of all the Protocols is that parties are encouraged to share key information and documents in order that the parties can try and resolve their disputes without a claim having to be issued at the court.  The courts expect all parties to have complied with the Pre-Action Protocols before issuing court proceedings.  Failure to follow the appropriate Pre-Action Protocol can result in sanctions being applied by the court. 

If pre-action correspondence does not result in a dispute being settled, it is likely to be necessary to issue court proceedings.  The documents which need to be filed with the court in order to commence court proceedings depend on the type of claim but the most common documents that will need to be sent to the court are a Claim Form and Particulars of Claim.  The Claim Form will contain a brief description of the claim and the remedy you are seeking.  The Particulars of Claim will set out the claim in more detail.  A court fee will also need to be paid in order to issue the claim. 

How much does it cost to issue court proceedings?

The court fee payable to issue court proceedings depends on the type and value of the claim but range between £35 for a claim worth up to £300 and £10,000 for a claim worth greater than £200,000.  In certain circumstances, some claimants may be entitled to a full or partial fee remission meaning the court fee payable will either be reduced or not payable at all.

In terms of the fees you will incur with your legal representatives, these costs largely depend on the value of the claim and how complicated the claim is.  For higher value and more complicated claims, it is likely to be necessary to instruct a specialist barrister to draft the court proceedings.  The barrister will work in conjunction with any solicitors instructed.  We provide clear guidance to our clients in terms of the costs that are likely to be incurred in issuing court proceedings.  

What happens once court proceedings are issued?

The Claim Form and Particulars of Claim must be served on the defendant and this will be done either by the court or by the claimant.  There are strict rules and time limits relating to service of court proceedings which must be complied with.  This is why we always suggest taking legal advice before issuing court proceedings. 

Once the court proceedings have been served on the defendant, the defendant can complete an Acknowledgment of Service within 14 days of the court proceedings being served on them.  If an Acknowledgment of Service is filed and served, the defendant then usually has 28 days from the date of service of the court proceedings to file their Defence and/or Counterclaim, although it is possible for the parties to agree to extend this time limit or for the court to allow the defendant more time.

If the defendant does not file and serve an Acknowledgment of Service and/or a Defence within the required time limits, the claimant can apply to court for judgment to be entered against the defendant.  If the defendant does file a Defence and/or Counterclaim then the claimant can respond to this by replying to the Defence and defending the Counterclaim.  Again there are strict deadlines which have to be complied with.  If the claimant provides a Defence to Counterclaim then the defendant can respond to that with a document known as a Reply to the Defence to Counterclaim.  All of these documents are known as Statements of Case. 

How long do court proceedings take?

This depends on the value and complexity of the case.  As a general guide, we estimate that:

  • Small claims (i.e. claims worth less than £10,000) can take between 6 and 9 months to conclude if the matter goes to a final small claims hearing.
  • Fast track claims (i.e. claims worth between £10,000 and £25,000) can take approximately 9 to 12 months to conclude if the matter goes to trial.
  • Multi-track claims (i.e. claims worth more than £25,000) take approximately 18 months to 2 years to conclude if the matter proceeds to trial.

However, it is our experience that most claims (over 90%) settle without a trial being necessary.  This has the obvious advantage of saving time and costs.  There are a range of different options in which parties can try and settle such as writing formal offer letters, mediation, arbitration and adjudication.  For more details please visit https://www.myerson.co.uk/business/commercial-litigation/alternate-dispute-resolution

Issuing court proceedings against a dissolved company

Once a company has been dissolved, it loses its legal status and it would not be possible to issue court proceedings against a dissolved company unless the dissolved company is restored to the company register.  A party that has an unresolved claim against a dissolved company and who wants to take action against it for compensation or redress is able to apply to the court to restore the dissolved company. 

Restoring a company to the register is a complicated process and it is always our advice that assistance should be sought from a solicitor who specialises in company restoration applications.  As a court application is required, a solicitor needs to draft the appropriate paperwork that has to be sent to the court and a barrister may also have to be instructed to attend any court hearing. 

There is a strict 6-year time limit to apply to restore a dissolved company.  The 6-year deadline starts to run from the date on which the company was dissolved.  This can be checked by going onto the Companies House website.  The only circumstances in which the 6-year deadline does not apply is if the purpose of the restoration application is to bring proceedings against the company for damages for personal injury or to enable an insurer of a dissolved company to bring proceedings against a third party in the name of the restored company to recover contributions in respect of any personal injury damages an insurer has had to pay out.  In these two cases, there is no time limit to apply to the court to restore a dissolved company. 

The procedure for applying to the court for a company restoration is set out in Part 8 of the CPR.  The Registrar of Companies should be named as the defendant.  The court will generally set a hearing date for three months after the claim is issued to allow time to comply with the requirements of the Registrar of Companies and the Treasury Solicitor. 

Once a dissolved company has been restored, steps can be taken to commence court proceedings against it, details of which are set out above. 

What are the costs consequences of issuing but not serving court proceedings?

There are many reasons why a claimant may wish to issue but not immediately serve proceedings, for example, to preserve a limitation date or to put pressure on a defendant to try to settle.

In that event the claimant has a period of four months within which to serve the proceedings upon the defendant.  But what if the claimant decides not to serve the proceedings after all? 

In the case of Aktas v Adepta (a registered charity) and Dixie v British Polythene Industries Plc [2010] EWCA Civ 1170, it was held that where a Claim Form is issued but not served, then the claim will not automatically lapse after the four month service period, but will remain “in limbo” until it is brought to an end, either by the claimant serving a notice of discontinuance or by a court order for it to be set aside.  This principle has been upheld in later cases.

There can be costs consequences in issuing but not serving court proceedings.  In the case of Webb Resolutions Ltd v Countrywide Surveyors Ltd [2016] 5 WLUK 35 (Ch), the claimant was ordered to pay the defendant’s costs of and incidental to the proceedings that had been issued and not served and this included the costs the defendant had incurred prior to court proceedings being issued. 

It is also important to remember that if a claimant discontinues the court proceedings at any stage, the default position is that the claimant is liable for the defendant’s reasonable costs up to the point of discontinuance. 

Are there any exceptions to the rules on discontinuance? 

The general rule that a claimant is liable for the defendant’s reasonable costs up to the point of discontinuance does not apply in small claims track matters as legal costs (save for court fees, fixed solicitors fees and fixed fees for expert evidence) are rarely recoverable in small claims proceedings.

Also, in relation to probate claims, if a claimant no longer wants to pursue a probate claim, they are not able to simply file a notice of discontinuance.  Instead, they must make an application to the court for the claim to be discontinued or dismissed.  If an application is made, liability for costs are within the court’s discretion and so, again, there is a risk of the claimant being ordered to pay the defendant’s costs.  Please note also that a defendant in a probate claim can also make an application to the court for the claim to be discontinued or dismissed if court proceedings have been issued and the defendant has acknowledged service of those court proceedings. 

What to do next

Our commercial litigation and probate litigation teams have a significant amount of experience in dealing with a wide variety of claims.  Both teams are highly ranked in the legal directory the Legal 500 and are described as impressive, extremely helpful, exceptional, proactive, excellent communicators, engaging and consistently highly effective.  Part of our expertise is advising clients when the appropriate time to issue court proceedings is.  Our specialist solicitors can be contacted on 0161 941 4000, via lawyers@myerson.co.uk or by clicking on the purple contact button.

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