What sort of disputes can you help me with?
How do I select a lawyer?
What can I expect?
What is a Small Claims Court?
What kinds of cases can be mediated?
How long does mediation take?
How can I be sure mediation will produce a fair result?
Things you might be thinking about when being involved in a claim.
Can you represent me at Court?
How is it possible to settle a dispute without going to trial?
Chronology of a claim?

 

 

 

 

What sort of disputes can you help me with?

We have extensive experience in conducting cases involving the following areas:

Disputed Wills

Contested Probate

Construction / Builder disputes

Landlord & Tenant claims including possession actions

Neighbour disputes including problems over rights of way and nuisance

Contractual disputes

Negligence claims including professional negligence

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How do I select a lawyer?

OK, so you’ve identified a handful of solicitors who may be able to help you with your case. You’ve looked online and even searched the Yellow Pages. How do you know which lawyer would be best suited for your matter? Although price is certainly a consideration, it is rarely wise to choose a lawyer based solely on the rate(s) offered. Here are several questions to consider in selecting a solicitor.

Experience

Has the lawyer handled similar cases? When was the last time the lawyer handled a similar case?

Ask to hear about cases like yours that the lawyer may have handled. Remember: age may have nothing to do with the lawyer’s ability to help you. A lawyer who has practiced for 20 years may have less experience with your type of problem than a lawyer who is three years out of law school.

Has the lawyer been investigated or disciplined? If so, for what?

What types of resolutions has the lawyer had in similar cases? How did those resolutions come about? Settlement? Negotiation? Mediation? Arbitration? Trial?

Availability

Who will work on your case? Will the lawyer do all of the work or will legal assistants, paralegals, or other associates do the work?

Does the lawyer have a large caseload or upcoming Trials that could affect his availability or attention to your case?

Communications

Can the lawyer explain the legal aspects of your case – and the process you should expect – in a way that makes sense to you? If the lawyer cannot explain things to you properly in an initial meeting, there is no reason to believe that he or she will be able to make a convincing presentation on your behalf.

Do you feel that the lawyer listened to you and was interested in your matter?

Did the lawyer (or someone from the lawyer’s office) respond promptly to your initial contact?

Has the lawyer told you both the strengths and the weaknesses of your case?

Can the lawyer give you an estimate on overall costs and time? Are there any alternative courses of action? If so, what are the advantages and disadvantages of each one?

How often will you need to meet with the lawyer? How often will the lawyer call or write to give you updates on the case? Will the lawyer provide you with copies of relevant documents?

Comfort Level and Other Intangibles

A lawyer-client relationship requires trust and confidence. Has the lawyer been able to inspire your trust and confidence?

Do you feel comfortable in revealing to the lawyer all of the relevant information – not simply the "good" facts?

Is the lawyer assertive enough – or conciliatory enough – to make you feel comfortable with his or her approach to your matter?

Has the lawyer explained the nature of the lawyer-client relationship? As the client, you have the right to make the final decisions in your case on most issues. The lawyer should provide you with options, guidance, and recommendations, but also respect your wishes as to how to proceed.

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What can I expect?

Whether you are suing someone or being sued, or being called as a witness, a claim is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. Don't forget, there are at least two parties to every action, and that means the schedule and the events that take place can be out of your hands. Nonetheless, some things happen in the same order in most litigation, and you can at least get a general idea of what's likely to happen. It will also help to know some of the words and phrases that come up in a claim.

The following chronology gives a general idea of how a claim proceeds. Your action may be different because of differences between rules of civil procedure. Your solicitor can help you to understand exactly how your claim will fit with this chronology; remember, your solicitor works for you, and should clearly explain every step of the legal process.

A civil action (as opposed to a criminal or family proceeding, for example) begins with a Particulars of Claim. A Particulars of Claim is a legal document that lays out the claims that the claimant (the person or business bringing the claim) has against the defendant (the person or business being sued). Typically, a lawyer will prepare this document.

A civil action is officially commenced by serving a Particulars of Claim on the defendant. Service can be done in various ways including personal service (i.e. giving a Particulars of Claim to the defendant personally) and sending a Particulars of Claim to the defendant by first class post.

The defendant has to acknowledge the claim within 14 days, and file the defence at Court within 28 days. The defence says what portions of the Particulars of Claim, if any, the defendant admits to, what the defendant contests, what defences the defendant may have, and whether the defendant has claims against the claimant or any other party.

If the defendant doesn't answer the Particulars of Claim, the claimant may apply for the Court to enter a default judgment against the defendant. If the defence contains a counterclaim or a third-party complaint, the party against whom that claim is made also has to answer within a certain time.

The parties exchange documents and other information about the issues relevant to the litigation, by a process called Discovery. Discovery can take three forms: written questions (usually Interrogatories) which must be answered under statement of truth; document production; and Depositions, which are formally transcribed and sworn statements taken in front of a Court reporter or other Court officer. The information is used in preparing the case for trial.

Note: If you are being called as a witness rather than involved as a party, discovery is the first of the phases during which you may get involved. Typically, third parties are involved in depositions, although in many jurisdictions there are provisions for written discovery and document requests to nonparties. If you do not want to be involved in discovery as a third party, and have a legally valid reason, you should consult an solicitor.

Sometimes, the parties can voluntarily resolve all their issues through alternate dispute resolution such as mediation or a negotiated settlement. The parties can also agree to binding arbitration, and some contracts (insurance contracts and construction contracts, for example) require binding arbitration. Sometimes judges will express a wish that litigants in civil actions go through alternative dispute resolution in some form.

Note: If a settlement is reached, the settlement agreement resolves all issues between the parties. Typically, the Court is either not involved or is involved only informally. Judicial approval of civil settlements is usually only required when one of the parties is a minor, or when there is a class action, or in other special circumstances that do not typically arise in most litigation.

In some cases, one or both of the parties will try to get rid of the case, or a portion of it, by applying for Summary Judgment. Basically, the parties present to the Court those issues that are beyond doubt and ought not to await a trial before obtaining a judgment. This is a hard concept for lay people. The theory is that, if a claim or defence cannot possibly win, it is better for the judge to deal with it before wasting time or money. The level of proof required for Summary Judgment is high; and if the party seeking Summary Judgment is unsuccessful, the Court may order him / her to pay the costs of the other party.

If the parties do not reach an agreement, and if the matter is not disposed of by Summary Judgment, the case will go to trial.

Trial is the other point at which third parties can become involved. The solicitor for the party who wants a witness to attend trial may subpoena the witness for trial if the witness is unwilling to attend. There are requirements for subpoenas, both in terms of form and in terms of notice and payment to a witness. Typically, notice and payment requirements are unrealistically small. A witness should consult a solicitor if he or she cannot attend, or if (as in the case of a professional) attending will cost him or her a lot of money.

At trial, the solicitors (or the parties, if they are not represented) present evidence and arguments for each side, and the judge decides the unresolved issues. Once the judge has reached a decision, the judge will order that judgement be entered for the party who wins. The judge may also order that one party pay the other's legal fees.

Either or both parties can appeal a judge's decision to a higher Court. But it is unusual for an appeals Court to overturn a judge’s decision.

It's hard to say how long all these steps will take in your case. The entire process can take from as little as 9 months, to as long as years. In the case of witnesses, you can be called to testify at any time from shortly after the event to the better part of a decade after it happened. Generally speaking, the less money at stake, and the more issues that can be resolved before trial, the smoother and faster the claim will go.

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What is a Small Claims Court?

In most cases, the small claims Court is available for lay people to resolve disputes with a monetary value of less than £5000 without the formality of a full-fledged trial. Typically, the claimant can file a simple form stating his or her claim with the County Court. The Court sends out details of the claim to the defendant who must respond within 14 or 28 days depending on whether the defendant chooses to file an Acknowledgment of Service form. After receipt of the defence, the Court sets a trial date and gives directions to trial. Generally, the parties appear before a Judge and make their arguments in an informal manner. The judge usually makes his or her decision immediately at the end of the trial.

Despite the informality of the procedure, Court standards still apply, and the parties must assert legally valid claims and defences for an effective result. Many small claims Court litigants consult a solicitor to define their arguments. The procedure can offer a quicker and cheaper alternative for relatively small cases, but winning claimants still face problems enforcing their judgements, for which they may seek the advice of a solicitor.

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What kinds of cases can be mediated?

Most civil (non criminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child contact agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Non violent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.

Finally, you may want to consider mediation if you get into a scrape with a neighbour, roommate, spouse, partner, or co-worker. Mediation can be particularly useful in these areas because it is designed to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. For example, if one neighbour sues another for making outrageous amounts of noise, the Court will usually deal with only that issue. If the Court declares one neighbour a winner and the other a loser, it may worsen long-term tensions. In mediation, however, each neighbour will be invited to present all issues in dispute. It may turn out that the overly loud neighbour was being obnoxious in part because his neighbour's dog constantly pooped on his lawn or his neighbor's pickup blocked a shared driveway. Because mediation is designed to look at and fix the bigger picture, it's a far better way to restore long-term peace to the neighborhood, home, or workplace than going to Court.

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How long does mediation take?

Typical mediation cases, such as consumer claims, small business disputes, or car accident claims, are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: add at least an hour of mediation time for each additional party. Major business disputes -- those involving lots of money, complex contracts, or ending a partnership -- may last several days or more.

Private divorce mediation, where a couple aims to settle all the issues in their divorce -- property division, maintenance, child custody, contact, and support -- generally requires half a dozen or more mediation sessions spread over several weeks or months.

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How can I be sure mediation will produce a fair result?

Remember that in mediation, you and the opposing parties will work to craft a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to Court:

Legal precedents or the whim of a judge will not dictate the solution.

If your dispute harbours undiscovered or undisclosed issues, mediation, unlike a structured Court battle, offers the opportunity and flexibility to ferret them out.

Because mediation does not force disputants to undergo the fear and sometimes paranoia of the Courtroom, -- where a judge can stun either party with a big loss -- people who choose mediation tend to be more relaxed and open to compromise.

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Things you might be thinking about when being involved in a claim.

This is a waste of time.

It may well seem like a waste of time, but you have to take ANY claim seriously. Even if you are being sued for something that you are completely innocent of, you have to address all the issues raised in the claim as if they were real claims.

I don't have a solicitor.

Most people don't. If you get involved in a claim, shop around for a solicitor you feel comfortable with. You and your solicitor are going to spend a lot of time together during the course of the claim, and you need to find someone you can work with. Make sure that you have a written retainer agreement with your solicitor, detailing what you will be charged and for what, and what your solicitor will do for you.

I'll get in trouble if that comes out.

That might be true, but it is also probably true that if you are involved in a claim, it WILL come out. Be honest and forthcoming with your solicitor. Even if it is embarrassing, even if it makes you look like an idiot or a crook, it is better if your solicitor knows. Give your solicitor everything in your relevant files, again even if it is embarrassing or incriminating. If you have the document, the odds are that someone else does too.

I can't afford this.

No one can really afford the expenses of a full-blown claim, however, the ultimate damages may far outweigh the cost of a successful legal defence. You should look at all legal actions as a balancing act between the expenses of going forward and the costs to you if you don't. This calculation also comes into play when deciding at what point you might wish to settle and on what terms. Consider, if you are sued, whether you might have insurance coverage under some insurance policy. Many policies require that you report incidents to the insurer, so it is important to look at policies as soon as you can.

Why are we fighting about something so silly?

You should realise that most claims settle, and that the Court system is designed to put pressure on you to settle the claim. You continually need to reassess whether the claim makes economic sense. If you are spending a large portion of the amount at issue in the claim on legal fees, the claim is not a good business move. Remember that your time is worth something.

My solicitor doesn't understand I don't have time for this.

Yes, he or she does. Adequate preparation for a claim, though, takes time. Make yourself available to your solicitor for discussions regarding the case, including working on discovery and preparation for depositions and Trial. It is not a waste of your time if it helps you to win the claim.

Court is scary, and too formal.

Yes, it is. That means you should follow your solicitor's advice about Courtroom decorum and behaviour, and don't be afraid to ask him or her if something is appropriate. It's one of the things that you are paying your lawyer for.

This is insulting.

No it isn't. Don't take this claim personally. If you are being sued, it is probably for economic reasons, not because you are a bad person. If you are forced to sue someone, it is probably for economic reasons or because communications have broken down.

Well, at least my opponent will have to pay all of my fees.

Probably not. Even if there is a statute saying you can be awarded fees, Judges are very reluctant to award all of them unless the positions your opponent takes are frivolous. Never make the decision to bring a claim based on the possibility that you might be awarded your solicitor's fees. Even then, it may not happen. At most you may recover 50% to 70% of the fees you incur. Don't pursue a claim for revenge, either. Claims are expensive, which means that revenge is expensive.

I could never pay this judgement.

True, but irrelevant. Don't be intimidated by the amount that your opponent is requesting as damages. Often, this figure is dictated by a civil procedure rule or statute, and bears no relation to the opponent's actual damages. Also, remember that no one asks for the reasonable damages that they feel they are owed; in a claim, they are asking for their best-case scenario. By the same token, don't become tied to the amount you have asked for in damages. It's your best-case scenario, too, and the odds are, if you go to trial or settle the claim, you will receive less than you have asked for.

Will this ever end?

Yes, but not soon. Don't forget that claims can take a lot of time. In some cases, it can take five years for a civil claim to go to trial. Even at the quickest, in low-population areas, it is typical for a civil suit to take a year from start to finish.

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Can you represent me at Court?

Richard Davies is a Solicitor-Advocate (All Higher Courts), he has Rights of Audience in all Higher Courts. This means he has the same rights as Barristers to appear before: High Court, Crown Court, County Court, Magistrates Court, Court of Appeal, House of Lords and the European Courts of Justice. He is one of just a handful of solicitors with this qualification in Cambridge.

In short, Richard is an expert litigator, with qualifications and experience few other solicitors have.

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How is it possible to settle a dispute without going to trial?

Disputes are often time consuming, stressful and costly.

It therefore stands to reason that if the process can be shortened the less time consuming it will be; the less stressful the process will be and therefore, ultimately, the less costly the process.

At Davies we manage to settle most of our disputes without the need for trial (about 90% of cases).

How is this possible?

The Disputes Resolution team lead by Richard Davies, a Solicitor-Advocate and accredited mediator, are experts in the use of the Civil Procedure rules (the rules governing claims at Court).

We deal with disputes all day, and every day; and our experience can bear substantial fruits. There is more than one way to approach a case: Dispute Resolution is the art of considering and employing all measures necessary to resolve a dispute as swiftly and as economically as possible, and yet still provide our clients with the best outcome available in the circumstance. To do this we will consider and discuss the merits with you of negotiation, mediation, arbitration and pure litigation.

We are confident in our abilities, a fact your opponents will come to realise swiftly.

Of course sometimes it will be necessary to take a case to trial: a settlement can only be negotiated / mediated if there is a meeting of minds. Consequently everything undertaken on your case will be done with trial in mind; not so that it gets to trial (most do not), but so that if it does, we have your back covered, and you are aware of the risks involved at all times.

If the matter does get to trial we shall give you the option of appointing a barrister or one of our team to represent you as advocate. Some clients prefer the "prestige" of Counsel; others prefer to use someone they know and trust, and who knows the case inside out. All members of our Disputes Resolution team are experienced advocates. Our head of team is also a Solicitor-Advocate, one of 3 solicitors within the Cambridge region with Rights of Audience in all higher Courts, both civil and criminal: he enjoys the same rights of audience as barristers. The choice is therefore yours.



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Chronology of a claim?

Whether you are suing someone or being sued, or being called as a witness, a claim is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. Don't forget, there are at least two parties to every action, and that means the schedule and the events that take place can be out of your hands. Nonetheless, some things happen in the same order in most litigation, and you can at least get a general idea of what's likely to happen. It will also help to know some of the words and phrases that come up in a claim.

The following chronology gives a general idea of how a claim proceeds. Your action may be different because of differences between rules of civil procedure. Your solicitor can help you to understand exactly how your claim will fit with this chronology; remember, your solicitor works for you, and should clearly explain every step of the legal process.

A civil action (as opposed to a criminal or family proceeding, for example) begins with a Particulars of Claim. A Particulars of Claim is a legal document that lays out the claims that the claimant (the person or business bringing the claim) has against the defendant (the person or business being sued). Typically, a lawyer will prepare this document.

A civil action is officially commenced by serving a Particulars of Claim on the defendant. Service can be done in various ways including personal service (i.e. giving a Particulars of Claim to the defendant personally) and sending a Particulars of Claim to the defendant by first class post.

The defendant has to acknowledge the claim within 14 days, and file the defence at Court within 28 days. The defence says what portions of the Particulars of Claim, if any, the defendant admits to, what the defendant contests, what defences the defendant may have, and whether the defendant has claims against the claimant or any other party.

If the defendant doesn't answer the Particulars of Claim, the claimant may apply for the Court to enter a default judgment against the defendant. If the defence contains a counterclaim or a third-party complaint, the party against whom that claim is made also has to answer within a certain time.

The parties exchange documents and other information about the issues relevant to the litigation, by a process called Discovery. Discovery can take three forms: written questions (usually Interrogatories) which must be answered under statement of truth; document production; and Depositions, which are formally transcribed and sworn statements taken in front of a Court reporter or other Court officer. The information is used in preparing the case for trial.

Note: If you are being called as a witness rather than involved as a party, discovery is the first of the phases during which you may get involved. Typically, third parties are involved in depositions, although in many jurisdictions there are provisions for written discovery and document requests to nonparties. If you do not want to be involved in discovery as a third party, and have a legally valid reason, you should consult an solicitor.

Sometimes, the parties can voluntarily resolve all their issues through alternate dispute resolution such as mediation or a negotiated settlement. The parties can also agree to binding arbitration, and some contracts (insurance contracts and construction contracts, for example) require binding arbitration. Sometimes judges will express a wish that litigants in civil actions go through alternative dispute resolution in some form.

Note: If a settlement is reached, the settlement agreement resolves all issues between the parties. Typically, the Court is either not involved or is involved only informally. Judicial approval of civil settlements is usually only required when one of the parties is a minor, or when there is a class action, or in other special circumstances that do not typically arise in most litigation.

In some cases, one or both of the parties will try to get rid of the case, or a portion of it, by applying for Summary Judgment. Basically, the parties present to the Court those issues that are beyond doubt and ought not to await a trial before obtaining a judgment. This is a hard concept for lay people. The theory is that, if a claim or defence cannot possibly win, it is better for the judge to deal with it before wasting time or money. The level of proof required for Summary Judgment is high; and if the party seeking Summary Judgment is unsuccessful, the Court may order him / her to pay the costs of the other party.

If the parties do not reach an agreement, and if the matter is not disposed of by Summary Judgment, the case will go to trial.

Trial is the other point at which third parties can become involved. The solicitor for the party who wants a witness to attend trial may subpoena the witness for trial if the witness is unwilling to attend. There are requirements for subpoenas, both in terms of form and in terms of notice and payment to a witness. Typically, notice and payment requirements are unrealistically small. A witness should consult a solicitor if he or she cannot attend, or if (as in the case of a professional) attending will cost him or her a lot of money.

At trial, the solicitors (or the parties, if they are not represented) present evidence and arguments for each side, and the judge decides the unresolved issues. Once the judge has reached a decision, the judge will order that judgement be entered for the party who wins. The judge may also order that one party pay the other's legal fees.

Either or both parties can appeal a judge's decision to a higher Court. But it is unusual for an appeals Court to overturn a judge’s decision.

It's hard to say how long all these steps will take in your case. The entire process can take from as little as 9 months, to as long as years. In the case of witnesses, you can be called to testify at any time from shortly after the event to the better part of a decade after it happened. Generally speaking, the less money at stake, and the more issues that can be resolved before trial, the smoother and faster the claim will go.



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Davies is the trading name of Davies Solicitors Limited (registration number 5699025). The registered office address is 30 Woollards Lane, Great Shelford, Cambridge CB22 5LZ,
and Richard Davies is the Director. We are regulated by the Solicitors Regulations Authority (reference number 439685).
We do not accept service by fax or by e-mail unless otherwise agreed.