WHAT IS LITIGATION?
The conduct of legal proceedings by parties before a court is litigation. It involves the use of the law and court procedures to:-
(i) assist the parties to resolve a dispute; or
(ii) obtain a legally binding decision that brings an end to the dispute.
That is achieved in two ways:-
(i) procedures are used to narrow issues in dispute between the parties. In most cases, this works effectively enough to encourage the parties to reach an agreement on the matter in dispute; or
(ii) in the minority of cases where the parties can still reach no agreement, a final and binding decision is imposed on the parties by a court. This decision is then enforceable under the enforcement procedures provided by our legal system.
WHAT IS INVOLVED?
The litigation process can be broken down to several easily identifiable stages. To some degree these steps overlap and, although discreet in their own right, the completion of one or more stages of the proceeding is not generally a pre-requisite for completion of the others. The steps include:
- Preparation for trial;
Although settlement discussions are part of the formal litigation process, they can (and often do) take place at any time during litigation.
STAGE 1 – PRELIMINARY INVESTIGATIONS
To give your case the best prospects of success it is important that thorough investigation be made into the facts surrounding the case.
These investigations usually include some or all of the following:-
- Obtaining statements from relevant witnesses;
- Conducting searches of appropriate public records;
- Photographic evidence;
- Obtaining expert opinions e.g., forensic accounting, design, valuation, engineering/ergonomic, etc.;
- Possibly specialist legal opinion from a barrister;
- Reviewing all documentary evidence eg, contracts, letters etc.;
- Obtaining financial evidence to support claims for damages e.g., accountants’ reports, financial statements, cash flows, tax returns etc.
During the course of the investigation, research is carried out about the law relevant to your case. A more informed opinion can then be made as to the prospects of success for the case, the most appropriate strategy for running the case and the type of relief to be sought or defence to be run.
STAGE 2 – PLEADINGS
The preliminary investigation having been completed, the next step is referred to as pleadings. These are commenced by way of issuing proceedings in the appropriate Court. The court procedures are designed to narrow those issues in dispute and then apply the law to those issues.
The factual allegations that the parties claim to be the relevant issues in dispute are set out in the pleadings. Pleadings can be very simple, such as a claim for a debt, or very complicated as in some fraud or competition law cases.
The pleadings state the facts that:
- the claimant (called the Plaintiff or Applicant) says give it a right to some remedy (damages or an injunction etc.); or
- the Defendant says establishes a defence to the Plaintiff’s claim.
At the hearing, either party must prove the facts alleged. The law must support those facts as giving either a right to a remedy or a defence to a claim.
From the pleadings it is established which of the relevant facts are agreed between the parties and which are hotly contested.
This stage of the action will involve:
1. Drafting the appropriate pleadings;
2. Possibly briefing Counsel to settle the pleadings;
3. Filing proceedings in the Court and attending to the delivery of same to the other party (called ‘service’);
4. Consideration of any Response received from the other party (due within 28 days of its receipt of the Claim);
5. Provision of Further Particulars of the Claim (in certain circumstances, a party can request further details of the allegations made against it so as to avoid surprise and be more clear as to the case it has to meet);
6. Drafting, filing and delivery of any Reply (your response to any new issues raised by the other party.
As the pleadings set the framework for the dispute, it is very important that they be prepared accurately. It is also necessary that a Defendant be called upon to raise any issues in its defence and provide full particulars of any matters it says are relevant. It is obviously much better to be aware of these issues at the start of the matter rather than being made aware of them at trial.
That being decided, the next step is the Disclosure process.
STAGE 3 – DISCLOSURE
As the name implies this step allows each party to “disclose” the evidence relevant to their case, in particular directly relevant to the issues in dispute as set out in the Pleadings.
Specifically, it involves two steps:-
(a) exchange of documents (called “Disclosure”); and
(b) with the permission of the Court, the delivery of questions called Interrogatories, the answers to which must be on oath.
Exchange of Documents
Any document (and the definition here is wide enough to include things like computer information, videotapes or digital files and data) which is relevant to the issues in dispute (as identified in the pleadings) is required to be “disclosed” to the opposing party.
Each party can claim a document is “privileged” and can withhold its production if privilege does exist. Typically only documents produced by your lawyers for you and by you for us are privileged. Documents that may incriminate you in relation to a criminal offence are also subject to privilege in certain circumstances.
Documents subject to privilege must still be disclosed, however, the opposing party is not permitted to inspect a document to which a valid claim of privilege attaches.
The documents are listed in a statement known as a List of Documents. If some documents are not included then it is impossible to use them in evidence at the hearing without special permission of the judge. Only under exceptional circumstances is this permission given.
The obligation to disclose is ongoing. This means that if new documents come into your power, possession or control after delivery of the List of Documents, they too must be disclosed.
Once the Lists of Documents are exchanged, each party has the opportunity to inspect and copy the documents listed and challenge any claims to privilege.
Disclosure is obviously a labour intensive task.
In addition to an exchange of documentary evidence, each side can in certain cases deliver a list of questions relevant to the issues in dispute.
There are strict rules governing the nature of the questions. Their main purpose is to determine what facts are admitted and what are denied. They cannot be used as a “fishing expedition” where one side looks for evidence that is unrelated to the case but might be of assistance anyway.
The answers are given in a form that must also be sworn on oath as true. At trial these answers can then be used in cross-examination to test the credibility of a person’s evidence.
The courts have recently restricted the use of interrogatories in certain cases due to their limited usefulness compared to their cost and delay.
On completion of Disclosure, subject to a number of other general administrative processes between the parties’ lawyers, the case is usually then listed with the court as ready for trial.
STAGE 4 – PREPARATION FOR TRIAL
Depending on which court the case is in, the delay between being ready for trial and the court actually allocating a date for hearing could be several weeks to several months.
As the pleadings and disclosure stages have disclosed all manner of information, new issues often arise that must be dealt with and statements updated or new witnesses interviewed. More detailed opinions need to be sought from expert witnesses and reports exchanged between the parties.
It is at this time that any leads uncovered by the preliminary investigation are finalised (if not already done so).
Conferences are held with all witnesses to confirm their evidence and to explain the procedure of giving evidence in court.
Barristers are briefed with all the evidence obtained to date so they can represent you at the trial. They provide a further objective opinion on prospects and any further evidence that might be needed prior to trial.
Barristers, or counsel, are also specialist advocates – they represent you in court before the judge – presenting your case and attacking the opposition’s case. They are generally more knowledgeable in the laws of evidence and court procedure than solicitors and their service is invaluable in the running of any case to hearing.
Expert witnesses are also briefed to provide opinions on matters that may help to persuade the court to find in a party’s favour. For example, doctors are often asked to give reports and evidence on the cause and effect of a particular injury. Engineers are called on to advise on the cause of accidents and the breakdown of machinery. Valuers and accountants frequently give evidence on the value of a business or a person’s loss.
Generally, experts and counsel are briefed after the preliminary investigation. Any opinion they give is always subject to the further evidence obtained during the process. It is important to update the expert’s information prior to a trial to ensure that when they give evidence they have no surprises and we are sure of their opinion in light of all the known facts.
SETTLEMENT / ALTERNATIVE DISPUTE RESOLUTION
Although settlement can take place at any time, once the evidence has been obtained and appropriately exchanged between the parties, serious settlement negotiations commence.
These negotiations can take the form of an informal discussion over the telephone between the lawyers involved or a more formal mediation or settlement conference involving third parties attempting to find a solution to the problem.
It is generally at this stage when the majority of cases settle.
The settlement negotiations are generally held “without prejudice”. This means that neither party’s rights are prejudiced by any discussion or evidence exchanged, which cannot be used if the case still goes to court.
These discussions often serve the purpose of pointing out factors in a case that perhaps were not considered by one of the parties involved and even if they do not result in a settlement they certainly assist in a finalisation of the case.
Should a settlement still not be obtained after this stage a trial is the next step.
It is important to keep in mind that once a matter has settled, that is the end of any rights the parties may have against one another. No further action can be brought by any party against the other.
This is the case even if the damage or injury becomes worse than was thought when the matter settled. The terms of settlement are a contract between the two parties not to pursue the matters in dispute any further. To do so amounts to a breach of the contract and the courts will only in exceptional circumstances (eg, fraud or misrepresentation) allow a party to proceed with an action if it has been settled by such an agreement.
STAGE 5 – HEARING/TRIAL
This is where all the evidence, both documentary and oral, is presented to a judge.
After the Plaintiff presents its case, including all witnesses giving oral evidence, reports being tendered and so on, the Defendant then has the opportunity to present its evidence.
On conclusion of the parties giving evidence, the barristers for each case summarise the evidence and the law for the judge.
The judge then adjourns the matter for consideration of the evidence and law. The judge then must give a decision in favour of one of the parties.
The judge is not bound to give a decision in a certain time frame and the time from hearing to handing down of the judgement can vary from one week to many months.
The length of a trial varies from matter to matter. It is subject of course to the nature of the evidence, the complexities of the issues and number of witnesses involved.
OTHER MATTERS – Interlocutory applications
The timeframes set out in any litigation plan are based on our experience, the nature of the evidence, the parties involved and the complexities of the case. They are also guided by timeframes set out in the Uniform Civil Procedure Rules 1999 (“UCPR”) or the Federal Court Rules. These are the “rules of court” by which each party to the litigation is bound. They are like the “rules of the fight” as it were.
The UCPR sets out certain timeframes for the completion of the various stages of the action. It also sets out the rules of pleading, disclosure and evidence. A failure by any party to adhere to the rules does not necessarily disqualify the party. While the courts have power to enforce the UCPR they generally leave it to the parties involved to ensure all parties comply with the rules.
In practical terms this means that if a party fails to comply with a particular rule (eg, to deliver its list of documents by the required date) it is up to the other party to make application to the court for an order for the other party’s compliance.
This provides two results:
- The other party is usually penalised by being ordered to pay part of the innocent party’s costs of any such application; and
- If the offending party still refuses to comply with the order of the court, it can be further penalised by having its claim or defence struck out, thus ending the action early.