Whatever you think of lawyers, we do have a purpose and can guide you through the pitfalls of the facts, law, procedure and strategy to, hopefully, a good outcome when you have a dispute. But the fact of the matter is that many people simply cannot afford solicitors and barristers when it comes to resolving their disputes. I have therefore written some tips on litigation on a “DIY” basis.

Litigation is the name of the process by which disputes start, are issued at Court, before ending at a trial or final hearing. The process of litigation is governed by rules (Civil Procedure Rules in England and Wales), and those engaged in it are referred to as ‘parties’ or ‘litigants’.

My first bit of advice would be to avoid disputes if you possibly can as litigation is risky and expensive! But if you find yourself having to take (or defend) action, hopefully the following will be of some help:

Take Advice

If you are able to budget to pay a lawyer, I would prioritise it as follows:-

1. Advice – take advice on your position at the earliest possible opportunity. This cannot be understated and if you can get some expert help on where things stand it might be you decide to leave things where they lie, or alternatively you will have some legal pointers on which you can hinge your case at a later date. That will help you not only in progressing things to a final hearing / trial but also in negotiations.

2. Pleadings - This refers to the ‘particulars of claim’ and defence documents which are the formal part of starting your case at Court. They set out the facts in a succinct way and are the building blocks of your case. A contract claim might include who the parties are, the terms of the contract, how you say the contract was breached, and what financial loss it caused.

3. Advocacy - You might be intelligent and a confident public speaker and know your case inside out, but experienced advocates know which points to make, when to make them, and what questions to ask which might cause your opponent's case to unravel.

Documents

Depending on which Court room dramas you watch, you might think that pulling out a document at a trial to the gasps of a jury and raised eyebrows from the Judge might be what wins your case.

I am afraid it is a lot less exciting than that, and litigation in England and Wales has a "cards on the table" approach whereby you are expected to provide documents that not only support your case, but which harm your case. Once your claim starts the Court will usually provide directions (a list of instructions to the trial) which include disclosure, where you prepare a list of documents and exchange these with copies with your opponent. The idea is that there should be no surprises at trial.

The other importance of documents is as follows. A Judge will need to decide your case on the balance of probabilities, that is to say whether it is more likely than not that a claimant has proved their case. If there is conflicting oral evidence (in layman's terms, ‘he said, she said’) then it may be that documents help the Judge resolve the dispute in favour of one side or another. An example might be an email written at the time referring to an agreed price for something that was not challenged (at the time) by the other party. Documents might not be definitive in and of themselves but are likely to be taken alongside someone's witness statement and oral account at the trial when the Judge is deciding who has succeeded on their case.

Witness Statements

Whereas the pleadings set out concisely the facts on which your case is based, witness statements allow you to tell the whole story, putting the flesh on the bone.

Statements are an opportunity for you to tell the Court what you (as maker of the statement) recall, heard, saw and said. They are important because they largely constitute the evidence in support of what you have put in your pleading.

What is hearsay?

Hearsay is a statement not made in oral evidence to the Court but put forward as evidence in the case. Whilst there can be technical definitions and complex procedural points around what is and what is not hearsay, and whether it should be allowed in Court, the important point for a litigant is to make sure you have a witness statement from those who can speak to facts first-hand. If that is you, put it in your witness statement. If it is from someone else, you should ask them to make a witness statement.

Negotiations

There are a multitude of reasons why you should consider negotiating with your opponent rather than litigating to a trial. If nothing else, you might avoid the stress of going through the process, the time it takes and the uncertainty of the outcome. You should not be afraid to negotiate with your opponent simply because you think it might make you look weak or not confident of your case. It is perfectly legitimate and happens between lawyers on every case, to say that you are confident of your case, but that you would be prepared to settle for less if you can wrap things up quickly.

What does "without prejudice" mean?

This term often causes a lot of confusion. The ‘without prejudice rule’ applies so long as there is a dispute and the negotiations are a genuine attempt to settle that dispute. Without prejudice material (which could take the form of a telephone call, meeting, email or letter) cannot be referred to in the course of the litigation or trial. It provides the parties with the freedom to negotiate and settle their dispute outside of Court without fear that it would be used against them.

You should clearly mark any negotiations ‘without prejudice’. If you don’t have that title, your negotiation will still be covered. Equally, just because someone plasters ‘without prejudice’ all over their letter does not necessarily mean that it is. The Courts look at the substance, not the form. For example, if it is not an attempt to resolve the dispute then it probably won't enjoy the protection of the without prejudice rule.

Trial

If I was to give one piece of advice as you approach the final hearing it would be: get organised.

Anyone other than an experienced advocate is going to find the process stressful. You need to focus on your pleadings and the specific elements of your case you need to prove. If you can further summarise it to 2 or 3 bullet points this will be helpful not just to the Judge but to yourself. Then you need to prepare your hearing bundle (if you are the claimant) and know your way around it. You could even create a table of a) the points in your pleadings, b) what documents support this in the bundle, c) which parts of your evidence support this, d) what your opponent says and how you deal with that.

What is cross-examination?

Cross examination is the opportunity a party has to question witness evidence from their opponent. It is likely that opponent's witnesses are going to say things that are contrary to the case you are putting before the Court. You need to be ready to question and challenge them (appropriately and politely of course) and to ‘put your case’ to them. This means challenging them on what they say, and stating what you say is the correct version of events.

If there is a representative acting for your opponent, don’t be flustered by legalese, and tell the Court if you don't understand something that has been said by the Judge or your opponent. You should find that as a litigant in person the Judge and representatives are accommodating, but don't expect the Court to be soft on you or give you a judgment that you may not deserve purely because you are unrepresented!

Summary

If you can, pay for some decent advice on where you stand as early as possible. Gather together your relevant documents and, if you need them, identify witnesses who can support your case. At least try and negotiate with your opponent. This can happen before you issue a claim at Court as well as afterwards and don't forget the "without prejudice" label.

If you have to go ahead to a final hearing / trial prepare a well-organised hearing bundle and know your way around it. Become familiar with your 2 or 3 main points and practice explaining them with reference to the documents and witness statements. Don’t just focus on your own case - prepare your responses and questions around what your opponent’s case is on your key points. If you think you’re going to be like a rabbit in headlights at the trial, you could write out a speech (advocates call this “closing submissions”) to make sure your cover your main points and have referred the judge to the key parts of the evidence and what you say they should conclude and why. After all that, make sure you write down as much of what the judge says in their decision. You might be euphoric, if you’ve won, or despondent if you haven’t, and could miss crucial information about the judge’s reasons and what happens next.

This article was written by Toby Walker, Dispute Resolution Partner at Allan Janes LLP. You can contact him directly on 01494 893512 or at toby.walker@allanjanes.com