Dealing with the Substantive Claim – The Litigation Process Explained

Drafting detailed claim details

Claim Details is the term given to a document that formally sets forth the details of the claim that an Applicant has against a Defendant.

These documents usually need to be prepared by a solicitor/attorney, as they are the ones who specialize in drafting these detailed documents. In a complex case involving multiple allegations of wrongdoing and high levels of loss, the details of the claim can take up many pages and will require numerous revisions to correct. However, it is vital that it is correct as it will form the alleged basis of the Plaintiff’s claim throughout the case and the document that the Defendant will have to respond to in defense.

If the Freezing Order has been obtained in circumstances of great urgency, the court will not require that Detailed Details of the Claim have been prepared. If (as is often the case in fraud claims) the freezing order is obtained after a lengthy period of investigation and preparation, it will be necessary to prepare Claim Details, which establish the applicant’s substantive case, and file them with the court. in the application for the Garnishment Order.

Defense and Counterclaim

If the defendant intends to fight the claim, they will prepare and present a defense to all allegations set forth in the details of the claim. Again, this can be a lengthy and detailed document, and the defendant may even seek a counterclaim against the applicant for any money he believes he is owed. If that happens, the applicant must prepare a defense to the counterclaim to prevent a judgment from 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 lay out the steps to take the matter to trial (commonly known as “instructions”). “). The instructions are similar to a timetable established by the court that the parties must adhere to, setting out a chronological sequence of steps/actions for all parties to perform up to and including trial.

Prior to that hearing, the Applicant will be required to provide detailed information regarding the likely costs of litigation along with detailed information regarding the nature and extent of any disclosure of documents in the proceeding.

The case management conference will be held in court (usually scheduled for 1-2 hours) and a judge will review the court file before issuing instructions to take the matter to trial.

Disclosure of documents

Next, an Applicant will need to produce what is called a Disclosure List. This is a list that sets out all the relevant documents you have (or had) in your possession that are relevant to the ongoing legal proceedings. This exercise in complex fraud proceedings can be very onerous.

It is now not uncommon for large volumes of documents to be stored electronically (especially in large-scale fraud) and the parties often need to agree on the parameters of any electronic search for documents (referred to as “electronic disclosure”). If necessary, the parties shall appoint an independent IT expert to search the relevant databases using agreed keyword search criteria.

It should be noted that this process is in addition to the more traditional review and cataloging of all printed documents which, in large-scale cases, can also be a very long and time-consuming exercise.

However, disclosure is of the utmost importance in claims of this nature. If the disclosure process is not carried out properly, the Defendant may file requests against an Applicant for the specific disclosure of relevant documents and, in very rare circumstances, may even lead one party to file a request against the other party for your claim be voided for failure to properly complete the disclosure exercise.

There are also cost consequences for not properly cooperating with any court order. Even if your main case is stronger and likely to succeed, failure to comply with any court order may result in interim cost orders against you before trial.

Once the disclosure lists have been completed, they are exchanged with the Respondent, who will in turn submit their own list. Each party may then request copies of some or all of the documents on the list of opponents or, alternatively, go inspect the originals (such requests must be made within a certain time limit). In large cases, the inspection and copying process can take considerable time. Even when complete, the Applicant and Applicant’s legal counsel will need to review all documents to understand their relevance or otherwise to the claim, which will extend the time the disclosure process takes.

Witness statements

The next stage of the instruction process is commonly the preparation of witness statements (or affidavits in certain types of proceedings), detailing for each individual who has direct knowledge of the matters relevant to the claim, their evidence in relation to the substantive case. . In complex fraud cases, these statements can be very long, but they are crucial to getting it right. Depositions establish the factual basis for an applicant’s claim, and witness statements from several different persons and even third parties in the litigation are usually required. They will also display all key documentation to support an Applicant’s claim.

It is critical that these statements are produced correctly as ultimately the applicant will only be able to rely on the details contained in these statements at trial. These documents can often take several months to prepare and complete.

Once completed, the witness statements will be sent to the Respondent and the Respondent will also send theirs to the Applicant. It is then necessary to review Defendant’s statements in detail and begin to gauge the quality of his evidence and whether it will ultimately “hold up at trial.”

expert evidence

If the claim involves, for example, complex financial matters or accusations of forgery, etc., the parties may need to agree on the appointment of an independent expert (for example, a forensic accountant) to provide an expert report dealing with certain aspects. of the alleged fraud. That person will also have to testify in court. Most of the time, the court will insist that both parties instruct a single expert, but occasionally each party may seek to rely on their own expert on a particular subject.

Experts must be fully briefed and instructed under the Rules of Civil Procedure 1998 and there are strict guidelines on how this must be done to ensure that the expert’s independence in the proceedings is maintained.

provisional applications

Throughout the entire litigation process, any party to the proceeding may file a provisional application. Essentially, this is the ability to petition the courts for various types of orders, such as:

1. A Respondent seeking to modify the terms of an Order;
2. A Defendant seeking to enforce an Order;
3. Requests to cross out part or part of the case alleged by one of the parties;
4. Specific disclosure requests;
5. Requests for additional information in circumstances where the case alleged by one of the parties is not clear;
6. A request for guarantee of costs;
7. An application for a Defendant to be committed to prison for failing to comply with the terms of a Freezing Order.

Such requests often cannot be anticipated at the outset of proceedings, but their possibility must be taken into account in proceedings of this nature, as it is unusual to proceed with a case without filing (or facing) at least some interim requests.

preparation for trial

The parties will then need to set aside time and/or resources to prepare for trial. In large cases, this is a lengthy exercise as it is the Applicant’s responsibility to prepare all relevant documentation in court-ready paginated packets. It is often necessary to produce many duplicate sets so that all relevant parties have a single set of files to work from.

As part of the preparation for trial, it is very common to have meetings with the attorney acting on behalf of the applicant and these should be taken into account in any proceedings. According to the moment in which the Lawyer was instructed, a document must also be delivered detailing all the background of the case, attaching all the documents invoked and the accessory evidence and giving detailed instructions on what is requested. The preparation of this Brief may take some time, as it is effectively an extension of the evidence in support of the claim. The attorney (unless he has been involved before) will come in cold and will have to read those documents to get up to speed and understand the claim.

Similarly, there is often considerable correspondence between the parties to the claim, along with correspondence with the Court, third parties such as experts, forensic accountants and investigators.

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Ultimately, if the matter cannot be settled and/or the parties are unwilling to reach an amicable settlement, the case will go to trial. Trials in complex cases involving fraud can be quite lengthy due to the highly detailed nature of the allegations and the number of witnesses often required to attend court (including expert witnesses).

Complex cases are likely to last a minimum of 10 days and the Applicant’s representatives should be aware that attendance at Court is required during this period.

If the Applicant is a person, or has an individual designated (when a business files a claim), to provide evidence, then that individual will generally be required to attend trial and be cross-examined by counsel for the Defendant about the evidence in support of the claim. lawsuit (and any other evidence presented in the process).