Civil Litigation - the Procedures and Process

Disputes can arise in connection with both commercial and private matters between individuals at any time. Most disputes can be resolved relatively quickly between the parties. However, if dispute proves to be intractable there may be no alternative than to consider legal action through the courts. 

Civil litigation deals with disputes between individuals or organisations and usually but not in every case, involves compensation. Civil law matters are filed by private parties, you are not obliged to instruct a lawyer to represent you although it is strongly advised, particularly as the High Court has held that litigants in person will not be allowed any special treatment regarding their obligations to comply with the rules, court orders and time frames. 

Some of the areas and issues that can be dealt with are:

• Contract disputes
• Personal injury
• Employment issues
• Real estate
• Product liability
• Medical malpractice
• Partnership disputes
• Shareholder disputes

When selecting a lawyer to represent you in the hearing you should ensure that they are experienced in the type of claim you wish to bring. Your lawyer will fully recognise the merit of your claim and can advise you as to what evidence you will need to provide. Your lawyer will select an appropriate barrister to plead your case, ensuring that they are knowledgeable and skilled and will provide the best opportunity of success.

Many people are concerned that taking such a course will be extremely costly. However, it does not have to be the case. There are several steps that can be taken to resolve a dispute before recourse to court. Giambrone and Partners litigation lawyers will always attempt to reach a solution by means of arbitration or mediation (“ADR”), depending on the nature of the dispute

Vincenzo Senatore, a Senior Partner, explained “when a business or individual is involved in a dispute that they cannot resolve with the other party, the assistance of a litigation lawyer does not automatically result in a court case. There are other options that can be considered before taking legal action. Vincenzo further pointed out “initiating alternative ways to resolution limits the costs involved and often results in early settlement.”

Alternative Dispute Resolution (“ADR”)

Mediation

Mediation in England and Wales is a structured process managed through various mechanisms to resolve disputes outside of court. It is less formal than arbitration. Here is an overview of how mediation is managed:

• The. Courts often encourage parties to mediate and can, in some circumstances, impose costs penalties on those who unreasonably refuse to consider mediation. Disputes in family law are obliged to attempt ADR before parties can proceed to court, particularly regarding child arrangements and financial issues post-separation.
• Civil Mediation Council (CMC) provides accreditation for civil and commercial mediators and organizations, ensuring high standards and a code of conduct.
• A neutral mediator is appointed who gathers preliminary information and forms an understanding the issues, meeting each party separately. Following which, joint sessions are scheduled in attempt to reach a mutually acceptable agreement. 
• Mediation sessions are confidential and without prejudice, meaning discussions cannot be used as evidence in court if mediation fails. The mediator cannot make a legal binding decision but simply makes a suggestion that will lead to resolution if both parties accept. However, if both parties accept the mediator’s decision an order can be made through the courts to make it legally binding.

Arbitration

The Arbitration Act 1996 provides a comprehensive basis for the conduct of arbitration, supported by well-regarded institutions and the judiciary. It is a formal procedure and the decision is legally binding.

• One party initiates the process by serving a notice of arbitration on the other party. Arbitrators are then selected from the London Court of International Arbitration (LCIA) a leading international institution, International Chamber of Commerce (ICC).
• Initial meetings may be held to agree on procedural matters and set a timetable for the arbitration.
• The parties present their cases, submit evidence, and may attend hearings where witnesses are examined and cross-examined
• The arbitrator(s) issue a final and binding award, resolving the dispute and often including orders for costs.

Civil Litigation

In the event of ADR being unsuccessful then you may bring a claim before the civil courts. Litigation is governed by the Civil Procedure Rules 1998 which control all aspects of the litigation process, including time limits, the forms to be completed and the way the dispute is to be presented to narrow the issues relating to the dispute. If either party fails to comply with these objectives, a cost order can be made against them. In cases that are considered extreme, a claim or defence can be struck out and the case can no longer proceed and the offending party will have lost be default.

There are separate courts for different types of claim, for example, if you claim is for less that £100.000 it will be heard in a County Court, or claims in excess of this amount it can be brought in the High Court. 

Prior to the hearing there will be an exchange of information between the parties. Each party will draft a witness statement and if appropriate there may be an expert witness statement. The disclosure of information prevents court time and money being wasted on a case where one party has irrefutable evidence to support their claim.

Before the Hearing

What to do and bring with you:

• The hearing letter with your case number
• Any documentation you need for the hearing
• Food and drink, other than alcoholic drinks.
• You may not wear a hat or a face covering other than those worn for religious reasons.
• You may not bring weapons, glass or any other liquids than water.
• You should arrive at least 30 minutes early but be aware that your case may be further down the list therefore you may have to wait. If you have any obligations such as child care you should make arrangements to accommodate the potential for a delay.
• You are allowed to bring a person to support you, however any more than one person may not be allowed in with you.

The Process

• If you are a litigant in person you must address the judge as sir or madam and you must not argue with the judge.

• If you are represented by a lawyer, they will ask the questions and conduct the cross-examination.
• If you give evidence you will be asked to swear an oath to tell the truth on the appropriate holy book relevant to you. Or if you are not subscribed to a religion you must make a declaration to tell the truth
• Once all the evidence and cross-examinations have been heard the judge will withdraw to make a decision which may be delivered on the day or sent to you in the post.

Giambrone & Partners have highly experienced dispute resolution and litigation lawyers with a wealth of knowledge in all areas of law enjoying a high level of success. We can guide you throughout the entire process delivering a dynamic robust strategy.

Vincenzo Senatore is a Senior Partner based alternately in both the London and Naples office. He is dually qualified Italian Avvocato (with Higher Rights of Audience) an English Solicitor, qualified in Northern Ireland and also qualified to plead before the International Criminal Court in The Hague.

Vincenzo has several years of post-qualification experience in Civil and Common law. Vincenzo has broad experience of UK and international cross-border transactions across a variety of industry sectors as well as international corporate and criminal law. Vincenzo is a formidable litigator with a demonstrable history of bringing successful transactions to successful conclusions, providing legal support to partners and delivering strategic advice to diverse clientele.

After completing his studies as Erasmus student at the Paris-Lodron Universität of Salzburg (A), Vincenzo graduated at the University of Naples “Federico II” (IT) and moved to the USA to gain his Master of Laws (LLM) in International Business Transactions and Trade Law at the Catholic University of America, Columbus School of Law, Washington DC.

Vincenzo has worked in the USA where, during his fellowship at the prestigious Stanford Center for Biomedical and Ethics (Stanford University), specialised in intellectual property related to human embryonic stem cells. His research was published in the prestigious peer-reviewed scientific journal Nature Biotech. During that time, he passed the first test (MPRE) to become a California attorney and also became Notary Public for the State of California.

Vincenzo’s professional activities have encompassed, amongst others, being on the scientific organiser committee for the Association Internationale des Jeunes Avocats for conferences on Anglo-American Law and as speaker in webinars, lectures and conferences organised by the British Chamber of Commerce (IT), CUA, Columbus School of Law, Washington DC (USA), Lockey Stem Cells Building Research, Stanford University (USA), SKKU School of Business (Republic of Korea), and the Naples Bar Associations, as expert in Civil and Common law arena.

Vincenzo has been recently appointed to the CUA, Columbus School of Law’s Alumni Council, Washington, DC. The prestigious Alumni Council forms the governing body of Catholic Law Alumni Association, formed in 2013 to endorse and advance the values, objectives, and well-being of The Catholic University of America and Columbus School of Law. He is also member of the International Criminal Court Bar Association, the Law Society of England and Wales, the Naples Bar Association, and of the International Academy of Financial Consumers (Korea) where he is also editorial member.

Vincenzo is, to date, the only Italian lawyer registered in the List of Professionals of the Italian Embassy in Tokyo and the Italian General Consulate in Osaka. Vincenzo heads the Giambrone's Japanese Desk in Italy and the Firm's offices both in Tokyo and Osaka, through the Strategic Alliances with Kikkawa Law Offices and Meilin International Law Firm.

Vincenzo regularly represents large and medium size Italian and Japanese enterprises in operations in both countries as well as private clients and entrepreneurs doing business with Japanese companies. His expertise includes a range of cross-border transactions, including M&A, joint ventures, opening branches and subsidiaries, and setting up companies in foreign countries, assist

If you would like to know more about embarking on civil litigation please contacts us at clientservices@giambronelaw.com or please click here.