Diving headfirst into court proceedings is discouraged. If you have a case to bring, you are expected first to send the other party a “letter before action”, setting out your claim and the remedy you seek. The onus is then on all parties to voluntarily exchange information and documents about the matter, and explore the issues with a view to settling out of court. Parties are encouraged to try to settle using alternative dispute resolution (ADR). It is more efficient and cost effective, and people are more likely to be satisfied with and abide by an agreement they have reached themselves. A decision imposed on them by the court may leave a bitter taste. Also, court hearings are usually held in public and may be the subject of media reporting, putting reputations at risk. Out of court settlements are more likely to be confidential.
ADR includes negotiation (by the parties with the help of their legal advisors); mediation (with a mediator who helps the parties agree terms); and arbitration (an arbitrator hears the arguments and decides on settlement terms). If you do end up in court, the onus on trying to settle continues and you can do so at any stage of the proceedings.
Parties must be open about the evidence they have or know of. No more holding your cards to your chest and springing surprises at the door of the court. You have to disclose all documents which are, or may be, relevant to the issues. These include documents in support of, or harmful to, your own case or the other party’s case. There are also rules on relying on experts (e.g. property valuers or medical experts). You may no longer choose to pay experts to argue on your behalf. You need the court’s permission. In the first instance, a single joint expert is appointed as a neutral witness, whose duty is to the court (not to you or the other party) to report impartially.
Court language and procedure are simpler, for the benefit of non-lawyers. You no longer “issue a writ”, you start a claim using a “claim form”. Evidence is given in a “statement” rather than an “affidavit”. And the requirement for statements to be sworn before a Commissioner for Oaths is mostly waived in favour of signing a declaration that your evidence is true.
Court proceedings remain expensive but costs are more closely monitored. At nearly every hearing, each party will disclose their costs to date and/or going forward. The judge keeps a close eye on whether costs risk becoming disproportionately high. If they do, you will be urged to settle. Even if you win, and the other party is ordered to pay your costs, it is unlikely they will have to fund the full amount of the “winner’s” costs. Each party almost always pays something in costs, hence an all-round advantage to reaching an early settlement.
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