Wednesday, 24 June 2015

Dealing With The Substantive Claim Part 1

The litigation process explained 
In this series of posts, the person or company seeking the Freezing Order is referred to as the Applicant and the person or company subject to the Order is referred to as the Respondent.
The grant of a Freezing Order is only the start, not the end of the claim. A Freezing order is simply a remedy to prevent a Respondent putting his / her assets out of the reach of the Applicant. Whilst the Applicant may have the protection of a Freezing Order in place, it is still under an obligation to pursue its substantive claim against the Respondent – commonly a monetary claim in respect of the losses it has suffered. A Freezing Order cannot be obtained in isolation without the existence of a substantive claim against the Respondent (although it may not yet have been issued).
This can be a lengthy process and ultimately end up in trial at Court. Set out below are the 9 main steps which will have to be undertaken in the substantive claim.
Drafting detailed Particulars of Claim
Particulars of Claim is the term given to a document which formally sets out the detail of the claim an Applicant has against a Respondent.
These documents commonly need to be prepared by a Barrister / Counsel as it is they who specialise in drafting these detailed documents. In a complex case involving various allegations of wrongdoing and high levels of loss, the Particulars of Claim can run in to many pages and will take numerous revisions to get right. However, it is vital that it is correct as it will form the pleaded basis of the Applicant’s claim throughout the entire case and the document which the Respondent will have to answer by way of defence.
If the Freezing Order has been obtained in circumstances of great urgency, the court will not require the detailed Particulars of Claim to have already been prepared. If, (as is often the case in fraud claims) the Freezing Order is obtained after a lengthy period of investigation and preparation, the Particulars of Claim,setting out the Applicant’s substantive case, will need to be prepared and put before the court on the application for the Freezing Order.
Defence and Counterclaim
If the Respondent intends to fight the claim, it will prepare and serve a defence to all of the allegations set out in the Particulars of Claim. Again, this can be a detailed and lengthy document and the Respondent may even seek to Counterclaim against the Applicant for any monies it may believe are due and owing to it. If that happens, the Applicant then has to prepare a defence to the counterclaim to avoid judgement being entered for that amount.
Case Management Conference
The parties will then have the matter listed for what is known as a Case Management Conference at which stage the court will review the claim to date and put in place steps to take the matter forward to trial (commonly known as “directions”). Directions are akin to a timetable put in place by the court that the parties have to adhere to, setting out a chronological sequence of steps / actions for all parties to carry out up to and including trial.
In advance of that hearing, the Applicant will need to provide detailed information with regard to the likely costs of the litigation together with detailed information relating to the nature and extent of any disclosure of documents within the proceedings.
The Case Management Conference will take place at court (normally listed for 1-2 hours) and a Judge will review the Court file before putting in place directions to take the matter to trial.