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 (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 theclaim:
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 are relied upon 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 eight 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.’ That is 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, the parties 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.
In Part 2, more details will be provided on the litigation process, including the disclosures the parties are required to make.
Catherine Ramnarine is a partner at M Hamel-Smith & Co. She can be reached at mhs@trinidadlaw.com
Disclaimer: This column contains general information on legal topics and does not constitute legal advice