Going to court is what happens when you cannot conclude a case by agreement.
Some solicitors are terrified of going to court which means they under settle cases. Also, it can be uneconomical for a solicitor to take a case to court.But our view is simple if we take on a case – if we can’t get the right money by negotiation, then we go to court.
The Queen appoints judges and they decide at trial. That is their job. As we have a professional reputation of being prepared to take cases to court, the insurers know they had better come up with the right offer or argue their case in front of a judge.
If it means we lose money on an hourly rate by going to court, we will do it, and do it cheerfully and professionally because we do our job properly and put your interests before ours. This is also to our benefit. Insurers know who the claims cowboys are who lose their nerve after the first offer. They know, with us, that a trial holds no fear and we actually enjoy them. So they negotiate on the basis that we are hard, fair and skilled. To keep that reputation we have no problem taking cases to court when the money isn’t enough.
Court proceedings should not be issued until any “protocol period” for the other side to respond has expired. Also, there can be good reasons for delaying going to court. If there are meaningful negotiations taking place then it would generally be wrong to issue court proceedings. If you have not recovered from any injuries it may be premature to try and settle the claim or go to court instead of using the additional time allowed for bringing the claim.
There is also an absolute deadline by which we will need to have brought court proceedings, known as the limitation date. For personal injury claims this is three years from the accident or date of knowledge of significant injury, whichever is the later, unless you were under 18 or not of sound mind at the time. If that is the case then it is three years from you reaching 18 or achieving sound mind. For most other claims the period is six years. Claims can be brought outside of these periods, but we strongly recommend you seek expert advice first and as soon as possible if you are in this situation.
Proceedings have to be issued on court forms which are available to download from the internet from the HM Courts Service website or from any county court. A fee may have to be paid, although people on low income can apply for exemption.
Once proceedings have been issued they must be served on the other side within four months where they are based in England and Wales, and six months if outside of this. If you fail to ensure we can serve them then the claim automatically fails. You can ask the court to serve them, but if it goes wrong it is your responsibility.
Once a claim has been issued and served the other side have 14 days from service to Acknowledge Service and 28 days from service to file a Defence. You can agree to let them have more time if you wish. Once a Defence is filed the court issues questionnaires to the parties and takes over control of the progress of the case. We will have deadlines to provide information to the court and the court will issue directions on what steps need to be done to prepare the matter for trial and when. Where directions are given you must work with us to try and comply with these. If there are reasons why you cannot comply we will need to tell the court about it and why as soon as possible.
Sounds simple? This is an extremely abridged version of what should happen. The conduct of litigation is governed by the Civil Procedure Rules, two massive volumes of Civil Procedure called the White Book. It costs over £400 and is changed annually and updated throughout the year. That is why you need a real solicitor to get both the law and the procedure right.