Overview (August 2010) - International Law Office

International Law Office

Litigation - United Kingdom

Overview (August 2010)

August 17 2010

Courts
Commencing litigation
Court process
Appeals


Courts

Most civil proceedings take place in the High Court or the county courts. Appeals are to the Court of Appeal and then to the Supreme Court.

The county courts deal with lower-value or less complex disputes. The courts are presided over by circuit judges, who also hear criminal cases in the crown courts. Less senior judges, known as district judges, hear most interim applications and many trials.

The High Court Queen's Bench Division, Chancery Division and Family Division each deal with different types of case. Each division has its own judges and administrative staff. Trials in the High Court are before judges or deputy judges and interim applications are dealt with by either judges or masters (less senior judges).

The Queen's Bench deals with breaches of contract or tort, although special courts deal with admiralty, judicial review and commercial matters. The Chancery Division deals with land, trust, partnership, IP and company matters, while the Family Division deals with matrimonial matters. Cases other than family matters can be referred to the Technology and Construction Court if they contain a sufficiently technical or scientific element. Some types of case - such as those involving judicial review, defamation or certain claims under the Human Rights Act - are determined almost exclusively in the High Court.

Commencing litigation

Pre-action
Barring good reasons to the contrary, all parties are expected to enter into dialogue to try to resolve their disputes before issuing legal proceedings; if they fail to do so, they may be penalised in costs. Certain types of claim have pre-action protocols designed to achieve early resolution. However, if no specific protocol applies, the parties should follow the court practice direction on pre-action conduct. Usually, a party writes a detailed letter, setting out its claim and enclosing documents to support it. The party should allow a reasonable period (eg, 30 days) for the other party to respond.

Issuing proceedings
The usual way to commence proceedings is to issue a claim form in court and serve it on the other party to the dispute.

The claim form must usually be served within four months of issue. Its receipt by the court office stops time running for limitation purposes. The claim form sets out a summary of the claim, but a more detailed document setting out the full particulars of the case (ie, the facts on which the claimant relies and the basis for holding the defendant liable) must also be served, either with the claim form or subsequently.

Acknowledgment and defence
The defendant may acknowledge service. If it disputes the claim, it must serve a defence in which it states why it is not obliged to meet the claim, including the facts (but not the evidence) on which it relies.

Statements of case
The claimant may reply to the defence. The claim form and particulars of claim, the defence and any reply are termed the 'statements of case'.

Each party or its legal representative must sign a statement confirming that the contents of its statement of case are true.

Service out of the jurisdiction
The rules for service of English proceedings on a foreign defendant are not straightforward. The Civil Jurisdiction and Judgments Act 1982, the Lugano Convention and the EU Jurisdiction Regulation provide that where different nationalities are involved, the case is usually heard in the court of the jurisdiction with the most links to the issues of the case, which is usually deemed to be the most 'appropriate' country. In certain circumstances the claim form may be served on a foreign defendant only with the court's permission.

Even if there is no basis for jurisdiction, a foreign defendant may submit to the jurisdiction of the English court. It may do so (i) voluntarily, by naming a local solicitor or a representative to accept service of proceedings (if it sees advantage to litigating in England), or (ii) accidentally, where a defendant begins to contest a claim on its merits without objecting to defects in service.

Parties may agree by contract to submit to the jurisdiction of the English courts, either exclusively or non-exclusively.

Defended claims and tracks
Once a claim is defended, the court asks the parties to complete an allocation questionnaire, describing certain features of the claim or defence. It then allocates the claim to one of the three tracks: small claims, fast track or multi-track. The most straightforward and lowest-value claims are allocated to the small claims or fast track. This Overview deals with the procedures in multi-track cases.

Court process

All parties must conduct litigation in keeping with the overriding objective. Cases must be dealt with justly and with regard to the parties (eg, their identity and financial status), the sums in issue, the importance of what is at stake and the complexity of the issues. The steps taken must be proportionate to the case.

There will be an early hearing for the court to set the timetable and steps to trial (which are termed 'directions'). The directions typically include:

  • a date for each party to disclose relevant documents;
  • a date for each party to produce witness statements from witnesses of fact;
  • provision for expert evidence in cases involving a technical issue (eg, a valuation of real property or other assets or an issue of foreign law);
  • a date for a pre-trial review (ie, a short hearing before the trial);
  • the establishment of a trial window (ie, a period within which the trial will be held) and an agreed estimate of the length of trial - even in complex cases, this can be within a year of allocation; and
  • an invitation to the parties to engage in alternative dispute resolution, such as the use of an independent mediator.

Costs
Solicitors must inform their clients at the outset of the overall likely costs and keep their clients updated as the proceedings progress.

Costs orders are made at the court's discretion. However, the general rule is that the unsuccessful party will pay the successful party's costs, even if the successful party has failed to win on every point that it has put forward. However, such costs are subject to detailed court assessment. Usually, around two-thirds of the costs are recovered.

The court will consider a number of factors in deciding what costs order to make. Parties that fail to follow established procedures and protocols or that otherwise do not conduct themselves properly may be penalised. So-called 'wasted costs' orders are sometimes made against lawyers who conduct litigation unjustifiably.

Disclosure
Each party must disclose all documents within its control on which it relies, which adversely affect its case or another party's case, or which support another party's case.

The term 'documents' includes paper documents and electronically held information. At the start of litigation, a party should be advised to collect and preserve all relevant material.

Disclosure is given by providing the other party with a list of relevant documents from which copies can be requested. Inspection of the original documents must be offered. The list must include documents which have been lost or destroyed.

Communications between a solicitor and its client for the giving or receiving of legal advice need not be disclosed - such documents are deemed privileged. An exclusion also applies to communications between solicitor and client (or a third party) with the dominant purpose of helping in the conduct of the litigation.

Witness statements and expert reports
In addition to the documents presented to the court as evidence, witnesses of fact are called to give evidence in person. Witness statements are exchanged in advance of trial to enable the parties to assess each other's case and narrow the issues in dispute. Such statements usually stand as the witness's evidence in chief at trial. Witnesses are cross-examined on their evidence in court.

Experts may be called (with the court's permission) to report on a technical issue. Such reports are also exchanged before trial. Experts must have sufficient expertise by virtue of their qualifications or experience. They must be independent of the parties and may be jointly instructed. They are expected to meet before trial to identify areas of agreement and isolate areas of dispute for resolution at trial.

Interim applications
Cases may not necessarily proceed to trial in a straightforward manner:

  • If a party fails to comply with the timetable, the court will impose an 'unless' order or penalty in costs.
  • A party that is fairly certain that its claim will succeed may apply for summary judgment; a confident defendant may apply to strike out all or part of the claim against it.
  • In certain circumstances a party facing an impecunious claimant or one based overseas may apply for security for the costs of proceedings, although costs orders are generally made at the end of proceedings.
  • A party can apply to the court to order the opposing party to provide further information about its case.

These and other matters may be determined before trial.

'Without-prejudice' discussions
At any time during the proceedings, the parties can communicate on a 'without-prejudice' basis to try to settle the dispute by a concession or offer to the other party. These communications may not be shown to the trial judge until after judgment. If a winning party fails to beat a formal offer to settle, it must bear the costs of the proceedings from a certain point after the settlement offer was made.

Documents
The parties agree paginated bundles of all relevant documents to which reference will be made during the trial.

Counsel for each party produces an outline (or 'skeleton') of the legal arguments with statutory and case law authorities on which it intends to rely. These are exchanged between the parties and provided to the judge before trial.

Witnesses
A witness of fact who refuses to attend trial can be served with a witness summons requiring him or her to do so. In limited circumstances, witnesses can give their evidence in a deposition - for example, if they are unwell or abroad. Otherwise, all witnesses must attend trial and be cross-examined on their evidence.

The process is adversarial, not inquisitorial. The judge may put questions to the witnesses to clarify matters of fact or expert testimony.

Record of trial and judgment
Civil proceedings are recorded and the parties can obtain transcripts of the judgment. Transcripts of the evidence and the legal argument can be arranged. Civil trials are open to members of the public, unless there is a good reason for excluding them. Most civil cases are heard by a judge alone. Judgment may be given at the conclusion of the proceedings or be reserved until a future date.

Appeals

Appeals do not follow as of right and few cases proceed to appeal. A party wishing to appeal must seek permission from the court which gave the judgment or from the appeal court. Permission will be granted if the court considers that the appeal has a real prospect of success or if there is another compelling reason.

Normally, appeals are on points of law. Three judges will hear appeals to the Court of Appeal and five judges usually sit in the Supreme Court.

The appeal is not normally a rehearing. Appeal judges do not have access to the witnesses and cannot assess their evidence in the same way as a trial judge. Rather, the appeal is a review of the evidence and the law. Occasionally, a rehearing will be ordered in the interests of justice.

For further information on this topic please contact Geraldine Elliott, Abigail Silver, Jaron Lewis or Tim Brown at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (geraldine.elliott@rpc.co.uk, abigail.silver@rpc.co.uk, jaron.lewis@rpc.co.uk or tim.brown@rpc.co.uk).


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