By Catherine Ramnarine
No one likes having to go to Court to resolve a dispute. The litigation process (especially if you are experiencing it for the first time) can seem confusing, slow and a drain on energy and resources that could be better utilised elsewhere. Unfortunately, despite your best efforts to avoid going to Court, litigation is sometimes unavoidable. Knowing how the litigation process works can go a long way towards making it a less stressful experience and can help in ensuring the best possible outcome for you or your business.
The Rules:
The first thing to note about the litigation process in T&T is that it is governed by a set of regulations known as the Civil Proceedings Rules or “CPR”. Basically, the CPR sets out all the steps that need to be followed from the time that a matter is initiated, to trial and beyond. It also sets timeframes for when these steps must take place. These rules might not always seem practical, especially for people accustomed to a fast paced commercial environment. Nevertheless, it is essential to comply fully with them. You run the risk of losing your case if you miss one of the more important procedural steps.
Before the Claim:
Before initiating a claim in Court, the Claimant is first required to write to the Defendant giving sufficient details of his claim so as to enable the Defendant to understand and investigate it and providing copies of all the documents on which he relies. The Defendant must be given a reasonable time to respond. If the Defendant disputes the claim, he must explain why and provide copies of all the documents on which he intends to rely.
The early exchange of information and documents between the Claimant and the Defendant gives each side a better appreciation of the relative strengths and weaknesses of their case and can make it easier for disputes to be resolved without having to go to Court. It also means that the parties and their attorneys must have a clear appreciation of the relevant facts, issues and evidence in the case from the very beginning. This requires providing as detailed and comprehensive instructions to your attorney as soon as possible, together with copies of all relevant documents.
Initiating the Claim:
A Claimant starts court proceedings by filing a document known as a ‘Claim Form’ at the Court Registry. The Claim Form very briefly states who the Defendant is, why the Claimant is suing him and what remedy he is seeking. Together with the Claim Form the Claimant must file a ‘Statement of Case’ – basically a written summary of his side of the story – the facts on which he relies to establish his case against the Defendant.
It is the Claimant’s responsibility (and not the Court’s) to ensure that copies of the Claim Form and Statement of Case are delivered to or ‘served’ on the other side.
Disputing the Claim:
A Defendant who has been served with a Claim Form must, if he disputes the claim, file at the Court Registry (a) within 8 days – a document known as an ‘Appearance’ giving notice of his intention to defend the Claim and (b) within 28 days – a document known as a ‘Defence’.
The Defence is essentially the flip side of the Statement of Case – a written summary of the Defendant’s side of the story together with all relevant documents.
Ignoring a Claim that has been served on you (even if you think the claim is ridiculous or far fetched) can have potentially disastrous consequences. If you do not file the Appearance or Defence within the prescribed time the Claimant can get what is known as a ‘Default Judgment’ – basically an order from the Court giving the Claimant whatever he asked for in his Claim Form. Default Judgment is obtained without a hearing before a Judge and irrespective of the actual legal merits of the Claimant’s case. It is based solely on the Defendant’s failure to file the Appearance or Defence.
The Statement of Case and Defence are collectively known as ‘Pleadings’ and form the basis on which the case will eventually be tried. The parties will not be allowed to raise or rely on any allegation that was not contained in their Pleading and once the first hearing of the matter has taken place, will not be allowed to change or add to it without the Court’s permission. It is therefore very important to get the ‘story’ right the first time around and to set up as strong a case as possible in your Pleading. Try as far as possible to ensure that your attorney has all the facts when he or she is preparing your Pleading, and read it through very carefully before it is filed to make sure that it is factually correct.
Case Management:
Once each side has filed their respective Pleadings the matter will be assigned to a Judge (who will manage it from that point on until trial) and a Case Management Conference, or “CMC” will be scheduled. The CMC is, as the name suggests, a conference between the parties, their attorneys and the Judge.
Before fixing a date for the trial of the matter the Judge will give ‘directions’ for several procedural steps required under the CPR. Perhaps the most important of these are the ‘Disclosure’ of Documents and the filing of Witness Statements as they relate to the evidence that will be before the judge.
Evidence and Proof:
The unfortunate reality of litigation is that it’s not always enough to be right – you have to be able to prove to the Judge that you are by presenting convincing evidence that supports your story or disproves the other side’s story. If for whatever reason you cannot produce this evidence (you didn’t keep proper records, the people that were familiar with the facts have since left the business etc.), it increases the chances of the Judge ruling in favour of the other side.
Disclosure:
You are required to identify for the Court and the other side all the documents in your control that may be relevant to the case. This includes not only documents that support your case, but also documents that would harm it or support the other side’s case. Certain documents (such as communications between you and your attorney) might be ‘privileged’ and need not be disclosed. In practice, disclosure usually means that each side files what is called a ‘List of Documents’.
Witness Statements:
Under the CPR, parties file ‘Witness Statements’ – basically written summaries in the Witness’ own words of the evidence they are going to give – before the trial. A Witness will not be allowed to give evidence at trial unless he has filed a Witness Statement by the time prescribed by the Judge for doing so. A Witness is not generally allowed to give additional evidence not contained in his Witness Statement unless he is responding to questions asked by the other side’s attorney – so it’s important to make sure that the Witness Statement(s) contain all the facts necessary to prove your case.
Trial:
Once all the pre-trial steps have been complied with, the Judge will fix a date for the trial of the matter. At trial, the Claimant will present his case (including the evidence of his Witnesses) first, followed by the Defendant. After each side presents their case the attorneys may make ‘submissions’ on how the Judge should decide the matter – this can be done in writing or orally. Once the evidence and submissions have been given the case is closed and the Judge will give his ruling – either giving the Claimant what he asked for or ‘dismissing’ the claim. In practice many Judges reserve their judgment for a later date so that they will have some time to consider the evidence and arguments put before them.
A party can appeal a Judge’s decision to the Court of Appeal. However, only the Judge’s interpretation of the law can be challenged. If there is, for example, a dispute between the parties about whether a particular occurrence took place and the Judge rules that it did, the other side cannot appeal this decision.
HOW TO HELP YOUR ATTORNEY HELP YOU
It can be easy, especially where you think that the claim against you is baseless or frivolous, to view litigation as a nuisance that you are paying your attorney to handle so that you don’t have to. Using your attorney effectively can free up your time and energy for more important things, but in order to truly maximise the benefits of legal representation you should think of it as a partnership between you and your attorney. There are several things that you can do in order to get the most value out of your attorney and improve the chances of a successful outcome to your dispute.
- Give your attorney all the facts
In order to properly advise you and successfully represent your interests, your attorney needs to know all the facts – even those that might be unfavourable or embarrassing to you or those you might consider irrelevant. Avoid the temptation to overstate or understate your case. If you aren’t sure whether something is important tell your attorney about it anyway. Let him have copies of all documents that may be relevant as soon as possible. Keep him informed of any developments that arise during the course of the case.
- Be responsive
Because of how the litigation and court scheduling systems work it’s not unusual for cases to be ‘dormant’ for a while and then suddenly resurface with a flurry of directions from the court that need to be complied with in a short space of time. You should try to respond to your attorney’s requests for information as soon as you are able to. If for some reason you don’t think that you can meet one of the deadlines set by the Court let your attorney know in advance – he might be able to get an extension. For larger businesses it’s often useful to designate a ‘point’ person for the case who will respond to requests for instructions and attend the hearings.
- Ask questions
Sometimes things that seem routine to attorneys are confusing to people who are unaccustomed to the litigation process. You should understand what the legal, factual and evidential issues in dispute are in the matter and what your attorney’s ‘strategy’ for dealing with the case is. A good attorney will take the time to explain this to you. If there is anything you don’t understand or don’t feel comfortable with, ask him to clarify or explain it. If you need to sign anything make sure you read it through carefully and understand it before you do.
- Have realistic expectations
The law might not always make sense or seem fair to you, but it’s still the law. Your attorney can only work within the boundaries of the legal system. A good attorney will tell you what you need to know – including the weaknesses and shortcomings in your case – and not just what you want to hear. If your attorney advises you that it might be in your best interests to settle or drop your case, give genuine consideration to his advice. If you do try to negotiate a settlement with the other side, remember that neither you nor your attorney can force the other side to agree with you or to be reasonable. Of course you should always remember that your attorney owes a responsibility to you as well to listen, be responsive and act in your best interests.
Adopting a few of these suggestions can greatly decrease the stress of the litigation experience, maximise the value that you get out of your legal representation and improve your chances of success.
