Navigating the legal system

Where to begin with the court system? The starting point is that it is broadly split between civil and criminal claims. Criminal claims are dealt with by the magistrates and crown courts, whereas civil claims (that is to say, litigation between private parties) are dealt with in the county courts, the High Court and various specialist tribunals. The workings of the criminal system are outside the scope of this article and best left to fans of courtroom dramas. Civil claims Generally speaking, the value or type of claim dictates where it starts out. Most claims worth less than £100,000 are started in the county court, whereas most claims over £100,000 can be started in the High Court. Some specific claims must be started in specific courts or tribunals – for example, possession claims must be started in the county court unless there is a compelling reason to apply to the High Court. Similarly, many claims relating to tax, employment or residential property, for example, must be started in the relevant specialist tribunal. Most large towns have their own county court building (although technically they are all part of a single county court), but there have been a large number of closures and consolidations over recent years. The High Court is primarily based in the Royal Courts of Justice on the Strand in London and in the nearby Rolls Building, but it has branches (known as “district registries”) in large urban centres such as Leeds, Manchester, Bristol and Cardiff. To add a further layer of complication, the High Court also divides itself into three divisions: the Chancery Division, the Queen’s Bench Division (QBD) and the Family Division. As the name suggests, the Family Division deals with divorce and other family law matters, but the distinction between Chancery and QBD is not as clear cut. Traditionally, Chancery dealt with matters such as property, trusts, wills and insolvency, whereas QBD dealt with commercial contracts, personal injury, negligence and libel. However, the lines can become blurred in some cases which cross different areas of law. The divisions themselves also have their own subdivisions – for example, the Commercial Court (part of QBD) deals specifically with commercial claims and the Technology and Construction Court (also QBD) deals with construction disputes. These distinctions are largely for historical reasons and, in the case of property disputes, their relevance has, thankfully, become less important as a result of the creation of the Business and Property Court in 2017. The Business and Property Court extends across both QBD and Chancery and aims to bring together those parts of the High Court hearing business and property-related claims. As a result, most High Court claims in which property professionals are involved are likely to come within its remit.  How does it all work in practice? Starting a claim involves issuing a claim form at court. The claim form itself is a simple, short document which sets out the bare bones of the claim and the details of the counterparty. The person bringing the claim is referred to as the claimant and the person against whom the claim is being brought is the defendant. The court will issue and stamp the claim form and allocate a claim number on payment of the relevant court fee. Once a claim has been issued, the next step is for it to be served on the defendant. The claim must usually be accompanied or followed in short order by particulars of claim. This is a more detailed document which sets out the claim more fully. For most claims, the defendant must formally acknowledge service of the claim within 14 days and serve its defence (setting out its detailed response to the claim) within a further 14 days. Defendants who fail to respond within the required time period risk being found automatically liable “in default”. Once a defence has been filed, the court will usually set a costs and case management hearing. This is a procedural hearing to set out the timetable and steps in preparation for trial and other procedural matters, for example around the management of litigation costs. The specific steps will vary depending on the case, but the flow chart sets out a typical example. Urgent, urgent, urgent Generally, the wheels of justice turn slowly, and the court process is not a quick one. A typical High Court claim will often take at least a year to 18 months to get to trial. However, the High Court has special procedures for dealing with genuinely urgent matters. For example, where an injunction is required to prevent something imminent (the publication of a libellous article or a protest on private property, for example), the court can if necessary deal with the case immediately and at any time, night or day. Needless to say, these procedures are not used lightly. Similarly, there may be cases in which one party’s interests may be irreparably harmed if the case is not decided quickly. If so, the court can order an expedited or “speedy” trial but, again, the threshold for this is a high one given that this inevitably involves some litigants jumping the queue at the expense of others. Trial and beyond Nowadays, very few cases get all the way to a trial. In the vast majority of cases, the parties are able to settle their differences, either through straightforward negotiations or through a more formal settlement process such as mediation. Part of the reason for this is that going to trial is not only time consuming but also expensive. A complex High Court trial will often involve multiple solicitors, barristers and expert witnesses, and the costs can often run into hundreds of thousands, if not millions, of pounds. Given that the unsuccessful party is usually required to reimburse a large proportion of the winning party’s costs, the stakes can be high. Where cases do go to trial, this may not always be the end of the matter. Almost inevitably, one party (sometimes both) will be unhappy with the judge’s decision and may wish to appeal. Appeals from the High Court are heard by a panel of (usually) three judges sitting in the Court of Appeal (also located in the Royal Courts of Justice). There is no automatic right of appeal, and permission is required from either the High Court judge or the Court of Appeal itself. A litigant unhappy with the decision of the Court of Appeal can look to make a further appeal to the Supreme Court (previously the House of Lords), but this is rare. The Supreme Court only hears around 100 cases a year, and a case must generally involve a point of law of general public importance for permission to appeal to be granted. The Supreme Court usually sits as a panel of three or five judges but, exceptionally, can sit as a panel of 11 for cases of considerable public or constitutional importance. For example, in 2019 the Supreme Court sat as a panel of 11 to assess the legality of the prime minister’s prorogation of parliament. An eye on the future The legal system has not always been the quickest at embracing change; however, slowly but surely, the courts are beginning to modernise. Electronic filing of documents in the High Court is now the norm, and the use of electronic hearing bundles is becoming more common. The Covid-19 pandemic has forced this process to accelerate and has seen a large number of hearings take place remotely using technology. As in many areas of life, the hope is that some of the benefits of this will be retained going forward, enabling the court system to be a little more flexible and accessible, and helping to ensure that the UK retains its reputation as a legal centre of excellence. Rules and regulations The rules which underpin the court system can seem overwhelming. In most cases, the starting point is primary legislation. Acts of parliament – such as the Supreme Court Act 1981, the County Court Act 1983 and the Tribunals, Courts and Enforcement Act 2007 – create the structures and legal powers which establish the system. These are then overlaid by rules which set out the day-to-day workings of the litigation process. The Civil Procedure Rules 1998 (CPR) cover most litigation in the High Court and the county court, although many of the specialist tribunals also have their own bespoke rules. Some courts have their own guidance which supplements the CPR – for example, the Chancery Guide and the Commercial Court Guide. Thankfully, the detail of these rules can usually be left to the lawyers. Paul Tonkin is a partner at Hogan Lovells Mainly for Students is edited by Paul Collins, a senior lecturer at Nottingham Trent University. He welcomes suggestions for the column and can be contacted at paul.collins@ntu.ac.uk