PHASES OF CIVIL LITIGATION BY DATIUS DIDACE 2021

TAKE NOTICE that,

Before you begin reading about the three main phases of civil litigation, know that the
civil litigation process can, generally, take two main different forms. Uncontested means that
both sides agree on a desired outcome but are using the court system to make their agreement
legally binding. These people may be required to have their agreement approved by a judge or
they may decide to do so as a way to help protect their interests. Uncontested cases can be
successfully completed through careful research, attention to detail and organization.
Contested means that the people involved in the case do not agree on what the outcome of
the case should be. Contested cases require that both sides argue their position to explain why the
law says that a judge should rule in for them. Contested cases will generally require much more
work than an uncontested case, even if the other side is not represented by an attorney. This is
because you will need to learn trial strategy and prepare to clearly explain the way that the law
applies to the facts of your case. And you will need to give this explanation while addressing the
other side, who will be presenting an explanation of the law that challenges your explanation,
arguing that it is only fair for the judge to rule in their favor instead of yours.

Order 8(A) CPC1 provide that order has introduce some new procedure in our
law or Civil litigation, before the case, is set before the hearing under
adversarial system. A court set as a mediator ADR it’s an alternative to the
adversarial system.

THE CIVIL PROCEDURE CODE, Comprises of the main Act, Made up

sections and sub sections. This is the part which enacts the procedural
principles to be followed in the process of civil litigation. It is this part which
enacts the enabling powers for the court or for the parties in the process of civil
litigation. It also contains the provisions of rulemaking powers of Chief Justice.

1
Cap 33 of 2019

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PRELIMINARIES TO CIVIL LITIGATION

Civil litigation presupposes the existence of the minimum of two (2) parties; we
are operating under the adversarial system of justice. In our CPC is structured
in such a way that, going to court is last resort,. Therefore in any civil
litigation, must have a dispute. It must be a contested dispute, in any civil
litigation, there must be the following;
a) Litis Contestatio (there must be a dispute) must be contested
b) A cause of action.
c) Drafting plaint, a letter of action (demand letter, or demand note, a
demand and a refusal)

Nowhere in CPC where a potential plaintiff is required to send a demand note

to a potential defendant, however the demand notes have been the practice in
civil litigation. The general principle the existence of the court, you solve a
dispute where there is amicable solution.

No provision of law which required the potential plaintiff to send a demand

note to potential defendant, however there is penalties for the plaintiff who did
not sent a demand note.

In the caae of Amradha Construction Co. vs Sultan Street Agip Service

(1967) HCD 321 or (1968) EA 83, the issue is whether the plaintiff who did not
sent a demand letter to the defendant can be entitled to costs of the suit where
the defendant does not contest the suit. S.30 of CPC it gives the court power to
order the cost. Normally costs in civil litigation follow the event.
There are two types of costs,
1. Advocate costs.
2. General costs

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In Advocate Costs
In Amradha’s case it was held that, where plaintiff did not save a demand note
on the defendant and the defendant does not contest the suit (he admit every
thing), the plaintiff would not be entitled to costs generally except under a
special order of a court.

In Karimjee & Others vs The Commissioner General of Income Tax (1972)

61, it was clearly stated that the plaintiff was not entitled to cost when a
defendant does not denied or contest the claim.

In Abdul Aziz Velji Ratansi vs Shari Singh (1968) HCD 453, both cases were
interpreting Rule 61 of Advocate Remuneration &Taxation of Cost Rules, which
specifically provide that in the absence of a demand note, a plaintiff will not be
entitled for Advocate costs. The rule applies only in those cases where advocate
are employed.

Also, it is under the CPC a demand note is not mandatory, not specifically
provided for, the interpretation of s.61 of Advocates Remuneration read
together with the above cases. It imposes penalties on the plaintiff who has
brought a suit without having sent a demand note and finishes the defendant
not contesting the claim

 THREE PHASES OF CIVIL LITIGATION

Civil litigation is broken into 3 main phases: Pre-trial, Trial, and

Post-trial. Each of these phases has certain tasks that must be
completed in order to protect the rights of everyone involved in
the lawsuit.

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Phase 1: Pre-Trial

The pre-trial phase of litigation2 can be explained in steps. These

steps are time-consuming, but also essential to a
successful case3.

Step 1: Research

Preparing a legal claim includes learning whether or not you have a

viable claim that can be heard by a judge, what laws apply to the
facts of your case, what facts are relevant to your claim and what
type of remedy you can ask for in court4.

As part of your research, investigate Alternative Dispute

Resolution5 Even experienced attorneys regularly settle their cases
outside of court using ADR. This might be the best option for you
too. It could save you time, money and even unnecessary damage to
your personal relationships.

Step 2: Filing

Use your research to tell you what specific information you are
required to include in your petition6. A petition is the document

2
A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
3
A lawsuit or dispute that is processed in court or similar resolution method.
4
A judge or group of judges whose job is to hear cases and carry out justice. Judges sometimes use
"court" to refer to themselves in the third person, as in "the court has read the briefs."
5
Methods of resolving disputes without official court proceedings. These methods include mediation and
arbitration.
6
In a civil case, a court paper that asks the court to take some kind of action.
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you write that asks the court to give you a certain outcome to file,
take 3 copies of your petition to the Clerk of the Court. The clerk
will stamp them to show that you are officially asking the court for
the things listed in your petition.

When you give your petition to the clerk, you should be ready to pay
a filing fee. Filing fees are often $200 or more. If you cannot afford
to pay the filing fee, you may file a statement of inability to
afford to ask the court to waive the fee for you. This form may also
be called a Pauper’s Oath7 or Statement of Inability to Afford
Payment of Court Costs8.

Keep in mind: The court will not contact you with a court date or
decision. Instead, you must complete the next steps until you have
a court order signed by a judge.

Step 3: Notice9 and Response

After you file your petition10 with the court, you are required to tell
the person, people or business that could be affected by
your case that you have filed. This is called giving
legal notice. Your research in Step 1 should tell you who the law
requires you to notify in your specific type of case. If you are unsure

7
A swearing to tell the truth, which would subject the oath-taker to liability for perjury if she knowingly
told a lie.
8
The fees charged for using the services of a court, such as filing fees, fees for serving court papers, fees
to pay a court reporter to transcribe depositions, photocopy court papers, etc.
9
A written announcement or warning.
10
In a civil case, a court paper that asks the court to take some kind of action.
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of who needs to be notified, you should research

the notice requirements of your type of case more specifically.

The person who files the Petition is called

the Petitioner11 or Plaintiff12., The other side is usually called
the Respondent13 in a civil case, but may be referred to as
the Defendant14.

To give legal notice15, ask the court clerk to issue citation16, and
arrange for a process server17 to give the citation to the person (or
business) you’re suing. You may not serve
the respondent18 yourself. The only way to avoid formally serving
the Respondent is if your case is
uncontested and the respondent shows their agreement by signing
and filing a Waiver19 of Citation.

Response: If the respondent receives notice of the case but thinks

that they are outside of the court’s jurisdiction20, then

11
A person or party who starts a case by filing a petition at court. Also called Plaintiff.
12
A person or business that files a formal complaint with the court.
13
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
14
An individual (or business) against whom a lawsuit is filed.
15
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
16
A court order or summons that lists the charges and tells a defendant to go to court, post bail, or both.
17
Any person over 18, not directly involved in the case, who will deliver the citation and a copy of the
plaintiff's complaint, and later return to the court an affidavit that he or she has completed service.
18
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
19
To give up a legal right voluntarily, intentionally, and with full knowledge of the consequences.
20
The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for
venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases
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the respondent should file a Special Appearance21 before filing

anything else.

Filing any other type of response before a Special Appearance will

tell the court that the respondent submits to
the court’s jurisdiction.

If the respondent does not have a jurisdictional challenge, they

should file an Answer22 with the court clerk to show that they are
interested in the case and are not ignoring the court’s authority.
There is generally not a fee to file an Answer.

If the respondent has their own claims against the petitioner, then
the respondent can tell the court about those claims in a Counter-
Petition. There is usually a fee to file a Counter-
Petition. A statement of inability to pay costs can be used for a
Counter-Petition to attempt to waive the filing fees.

Phase 2: Trial

The trial phase of the civil litigation process will be very different if
your case is uncontested, meaning that both sides agree on what
the final outcome of the case should be. If your case is uncontested,
the trial phase should be very short and might be better thought of
as a “hearing.”

21
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
22
An official response to claims made in a lawsuit.
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During the final hearing of an uncontested case, you will simply

present your signed order to the Judge, answer any questions that
the Judge may have about your agreement and then file
the order23 with the Court Clerk once the Judge has signed it.

If you and the other side of your case disagree about

what the outcome of the case should be then
your case is contested24. If your case is contested, then you
will need to spend a lot of time preparing for trial.

To prepare for a contested trial you should start by looking for an

attorney who offers limited scope representation and can coach you
through the issues and strategies that might come up in trial based
on the facts of your case.

Step 1: Limited Scope Representation

If you plan to represent yourself in a contested trial, consider hiring

a private attorney to provide you with limited scope
representation, also known as unbundling. Not every attorney
offers limited scope representation. However, attorneys who offer
limited scope representation may help you prepare for court at a
price you can afford. Limited scope representation is less expensive
than hiring an attorney to go to court for you because you will
complete most of the work yourself. However, talking to an
experienced attorney about the presentation, procedures and

23
A decision issued by a court
24
A case is contested when the parties disagree with each other about what should happen.
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objections that you are likely to see and use in court could
determine whether you win or lose your case.

Step 2: Procedure

Even if you hire a limited scope attorney to help you prepare

your case, you should plan to spend time
studying court procedures so that you understand what is
happening during your trial. Whether or not you are a lawyer, you
will be expected to follow the same rules that lawyers must follow
in court.

Once you are in trial, you will not have the chance to research what
is happening. Instead, you should prepare for different possible
scenarios and outcomes in advance so that you are ready to
participate even if things go differently than you expected.

Step 3: Evidence & Objections

These rules tell how to introduce and share important information

about your case with the court. As you study, make sure that you
understand the legal concepts
of relevance, privilege, hearsay25, and admissibility.
Understanding these concepts will help you learn objections that
can be used to keep inadmissible or inappropriate information out
of court.

25
Evidence presented by a witness who did not see or hear the incident in question but heard about it
from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.
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Generally, if you disagree with the trial judge about what

information should or should not be admitted into court, you need
to say something about it during trial. This is because in most
cases you will not be able to appeal26 your case, for that reason,
unless the trial judge made a mistake despite your objection27.
Learning how to properly preserve a mistake for appeal will be part
of your trial preparation.

Step 4: Practice

In court, you will need to clearly explain the way that the law
applies to the facts of your case.

You will also need to know the legal concepts, available evidence,
procedures, and rules that apply to your case.

This already is a lot of information to remember!

In court, you must be ready to apply and present all of this

information while the other side interrupts you, tells the judge that
your story is not believable, you do not understand the law and
then tells their own version of the story that you might know or
believe is untrue. To stay calm even in this type of stressful
atmosphere, you will need to practice what you want to say over
and over again.

26
When someone that loses at least part of a case asks a higher court (called an "appellate court") to
review the decision and say if it was right.
27
A formal protest made by a party over testimony or evidence that the other side tries to introduce.

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Phase 3: Post-Trial

Important: Deadlines

Whether you agree or disagree with the judge’s final decision, you
should pay special attention to the deadlines that apply to post-trial
action. These deadlines will tell you how long you must wait before
your judgment is no longer eligible for appeal. Appeal standards are
very complex and often overwhelming for non-attorneys. You should
talk to an attorney about your case if you want to appeal the judge’s
decision OR if the other side has an attorney to help
them appeal a judgment in your favor.

Scenario 1: Setting Aside Default28 Judgments

If you were given improper notice about a case that resulted in

a default judgment against you, then you may be able to have that
decision set aside. Getting a default judgment29 set aside is not
easy, and is best done with the help of a licensed attorney. If this
has happened to you, you should act quickly to contact legal
aid30 or a private attorney to help you set aside the default
judgment.

28
If defendants in a civil case receive legal notice, but do not file an answer at court by the deadline and
do not go to the court hearing, they are "in default." When this happens the court can decide the case
without the defendant's input.
29
A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to
appear in court or otherwise respond to the complaint.
30
Free or low-cost legal services for low-income individuals.
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Scenario 2: Enforcement

If you agree with the outcome of your case, you may still need to
take extra steps to enforce the judge’s order after it is signed. Read
the court order31 closely so that you understand what must be done
to comply with the court order. Make sure you understand your
obligations as well as the other side’s obligations to you. Look for
deadlines that tell how long you and/or the other side each have to
comply with the court order.

If the other side does not comply with the court order by the
deadline, you may file a Motion to nforce or a similar titled
document to tell the judge that the court order is not being
followed. What you file to enforce a judgment and the specific
enforcement process will depend on the type of case you have.

In general to prepare to bring an enforcement action, gather any

evidence that shows the other side is not following the court order.
Based on this evidence, the judge will decide what steps are
appropriate to make the other person obey the court order. Possible
penalties for ignoring a court order can include fines, property liens,
collection of property by a peace officer, license suspensions and/
or forcing the sale of certain property.

31
A legal decision made by a court that commands or directs that something be done or not done. Can be
made by a judge, commissioner, court referee, or magistrate.
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Scenario 3: Appeal

If you disagree with the judge’s decision then you may be able
to appeal it. An appeal takes place when an appellate court reviews
what happened in the trial court. If the appellate court believes the
trial court made a mistake (called an error) and believes the
mistake made a difference in the outcome of your case (harmful
error), the appellate court can change the trial court’s decision or
send your case back to the trial court to be tried again.

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