Drafting detailed claim details
Claim Details is the term given to a document that formally sets out the details of the claim that a Petitioner has against a Defendant.
These documents usually need to be prepared by a lawyer/attorney, as they are the ones who specialize in drafting these detailed documents. In a complex case involving multiple allegations of wrongdoing and high levels of loss, the claim details can span many pages and will require numerous revisions to correct. However, it is vital that it is correct as it will form the alleged basis of the Plaintiff’s claim throughout the entire case and the document to which the Defendant must respond in defense.
If the Freezing Order has been obtained in circumstances of great urgency, the Court will not require that Detailed Claim Details have been prepared. If (as is often the case in fraud claims) the freezing order is obtained after a long period of investigation and preparation, the Claim Details, which establish the substantive case for the applicant, will need to be prepared and filed with the court. in the Garnishment Order application.
Defense and Counterclaim
If the defendant intends to fight the claim, the defendant will prepare and present a defense to all the allegations set forth in the claim details. Again, this can be a long and detailed document, and the defendant may even seek a counterclaim against the applicant for any money they believe is owed. If that happens, the petitioner must prepare a defense to the counterclaim to avoid a judgment for that amount.
Case Management Conference
The parties will then have the matter scheduled for what is known as a Case Management Conference, at which stage the court will review the claim to date and set out steps to take the matter to trial (commonly known as “instructions”). “). The instructions are similar to a court-established schedule that the parties must adhere to, setting out a chronological sequence of steps/actions for all parties to carry out up to and including trial.
Prior to that hearing, the Applicant shall provide detailed information regarding the probable costs of litigation together with detailed information regarding the nature and extent of any disclosure of documents within the proceeding.
The case management conference will take place in court (usually listed for 1-2 hours) and a judge will review the court file before issuing instructions to take the matter to trial.
Disclosure of documents
An Applicant will then need to produce what is called a Disclosure List. This is a list setting out all the relevant documents you have (or had) in your possession that are relevant to ongoing legal proceedings. This exercise in complex fraud procedures can be very onerous.
It is now not uncommon for large volumes of documents to be stored electronically (especially in large-scale fraud) and the parties often need to agree on the parameters of any electronic document search (referred to as “electronic disclosure”). If necessary, the parties shall appoint an independent computer expert to search the relevant databases using agreed keyword search criteria.
It should be noted that this process is in addition to the more traditional review and cataloging of all printed documents, which in large-scale cases can also be a very lengthy and time-consuming exercise.
However, disclosure is of the utmost importance in claims of this nature. If the disclosure process is not properly carried out, the Respondent may make requests against a Petitioner for specific disclosure of relevant documents and, in very rare circumstances, may even lead to one party making a request against the other party for your claim is dismissed for failure to properly complete the disclosure exercise.
There are also cost consequences for failing to properly cooperate with any court order. Even if your main case is stronger and likely to succeed, failure to comply with any court order may result in interim cost orders against you before trial.
Once the disclosure lists have been completed, they are exchanged with the Respondent, who in turn will submit their own list. Each party can then request copies of some or all of the documents on the opponent’s list, or alternatively go to inspect the originals (such requests must be made within a specified time frame). In large cases, the inspection and copy process can take considerable time. Even when complete, the Applicant and Applicant’s legal advisors will need to review all documents to understand their relevance or otherwise to the claim, which will extend the time it takes for the disclosure process.
Witness statements
The next stage of the instruction process is commonly the preparation of witness statements (or affidavits in certain types of proceedings), detailing for each individual who has direct knowledge of the matters relevant to the claim, their evidence in relation to the substantive case. . In complex fraud cases, these statements can be very long, but they are crucial to getting it right. Statements establish the factual basis for an applicant’s claim, and witness statements are typically required from several different individuals and even from third parties in litigation. They will also display all key documentation to support an Applicant’s claim.
It is critical that these statements are produced correctly as the applicant will ultimately only be able to rely on the details contained in these statements at trial. These documents can often take several months to prepare and complete.
Once completed, the witness statements will be sent to the Respondent and the Respondent will also send their witness statements to the Petitioner. It is then necessary to review Defendant’s statements in detail and begin to gauge the quality of his evidence and whether he will ultimately “stand up at trial.”
expert evidence
If the claim involves, for example, complex financial matters or allegations of forgery, etc., the parties may need to agree to the appointment of an independent expert (for example, a forensic accountant) to provide an expert report dealing with certain aspects of the alleged fraud. That person must also testify in court. Most of the time, the court will insist that both parties instruct only one expert, but occasionally each party may try to rely on its own expert on a particular issue.
Experts must be fully briefed and briefed under the 1998 Rules of Civil Procedure and there are strict guidelines on how this should be done to ensure that expert independence in the proceedings is maintained.
provisional applications
Throughout the entire litigation process, either party may file a provisional request. Essentially, this is the ability to apply to the courts for various types of orders, such as:
1. A Defendant seeking to modify the terms of an Order;
2. A Defendant seeking to comply with an Order;
3. Requests to strike out part or part of the case alleged by one of the parties;
4. Specific Disclosure Requests;
5. Requests for additional information in circumstances where the case alleged by one of the parties is not clear;
6. A request for a guarantee of costs;
7. A request for the incarceration of a Defendant for failing to comply with the terms of a Freezing Order.
Often these types of requests cannot be foreseen at the beginning of the proceeding, but their possibility must be taken into account in proceedings of this nature, as it is unusual to pursue a case without filing (or facing) at least a few provisional requests.
Preparation for trial
The parties will then need to set aside time and/or resources to prepare for trial. In large cases, this is a lengthy exercise as it is the Petitioner’s responsibility to prepare all relevant documentation in court-ready paginated packets. Often it is necessary to produce many duplicate sets so that all relevant parties have a single set of files to work from.
As part of the preparation for the trial, it is very common to have meetings with the lawyer acting on behalf of the applicant and these should be considered in any proceeding. Depending on when the Lawyer was instructed, a brief must also be delivered detailing all the background of the case, attaching all the documents invoked and accessory evidence and giving detailed instructions on what is requested. The preparation of this Brief may take some time, as it is effectively an extension of the evidence in support of the claim. The lawyer (unless he was previously involved) will come in cold and will have to read those documents to get up to speed and understand the claim.
Likewise, there is often considerable correspondence between the parties to the lawsuit, along with correspondence with the Court, third parties such as experts, forensic accountants, and investigators.
Test
Ultimately, if the matter cannot be settled and/or the parties are unwilling to reach an amicable settlement, the case will end in trial. Trials in complex cases involving fraud can be quite lengthy due to the highly detailed nature of the charges and the number of witnesses often required to attend court (including expert witnesses).
Complex cases are likely to take a minimum of 10 days and Applicant’s representatives should be aware that Court attendance is required during this period.
If the Petitioner is an individual, or has an individual designated (when a business brings a claim), to provide evidence, then that individual will generally be required to attend the trial and be questioned by the Defendant’s attorney about the evidence in support of the claim. complaint (and any other evidence presented in the process).
