Litigation & Disputes

The main methods of dispute resolution are:

• Litigation – The use of the Courts and legal process.
• Arbitration – The use of an impartial, independent third party to decide the outcome of a dispute. Many complex commercial contracts will specifically require disputes to be resolved by arbitration.   
• Alternative dispute resolution (“ADR”) (principally mediation) – The most common form of ADR is mediation; the use of an impartial third party (a mediator) to facilitate the resolution of a dispute through a confidential process.
• Negotiation – The parties attempting to reach a settlement (usually through their legal representatives) without the use of the Courts or any form of intermediary.

The Court rules may specify that a certain type of case must be commenced in a certain Court. The High Court consists of the Chancery Division, the Queen’s Bench Division and the Commercial Court. High Court jurisdiction is normally reserved for important, higher value or complex litigation or where the dispute gives rise to issues of general public importance. Generally claims for £100,000 or less must be commenced in the County Court; claims for more than £100,000 may be started in the High Court. Subject to that, where a claim falls within the jurisdiction of the County Court the claimant may start it in the High Court if there is a special reason (for example complexity) to believe it should be dealt with by a High Court Judge. In the absence of a special reason, claims worth less than £50,000 commenced in the High Court will generally be transferred to the County Court.

The pre-action protocols set out the best practice that should be adopted by parties to a dispute, and their legal advisers, before any proceedings are issued. The protocols set out the steps which should be taken by the parties and broadly aim to:

• Encourage the exchange of early and full information about a prospective claim
• Enable parties to avoid litigation by agreeing a settlement before proceedings are commenced.
• Support the efficient management of proceedings where litigation cannot be avoided.

Specific pre-action protocols are in force for disputes concerning particular categories of case (for example, construction and engineering or professional negligence). If a case is not covered by a specific pre-action protocol, it should comply with the Practice Direction on Pre-action Conduct and Protocols (“Pre-action PD”); the essence of which is to encourage parties to exchange information and make appropriate attempts to resolve the claim without issuing proceedings.

Pursuant to the Pre-action PD, a claimant should send a “letter of claim” to the potential defendant, which sets out the basis of their claim in some detail and provide copies to the other side of any documents that are relevant to the case. This is to encourage discussion and the exchange of information at an early stage. If a satisfactory response is not received within a reasonable time proceedings will be prepared, issued at Court and formally served. The defendant then has 14 days in which to file an acknowledgement of service and a further 14 days to file a defence. If the defendant requests additional time to serve a defence, it is normal practice for the claimant to agree. The Civil Procedure Rules allow for an extension of up to 28 days to be agreed in writing between the parties. Assuming the defendant files a defence the Court will provisionally allocate the claim to one of the three tracks (small claims track, fast track and multi-track). Factors that influence the allocation include the monetary value of the claim and the complexity of the legal issues involved. Parties will agree directions or there will be a case management conference in which the Court will set a timetable for the case to go to trial. The directions will, amongst other things, provide for the following steps:-

• Disclosure and inspection of documents
• Exchange of witness statements
• Exchange of expert reports
• Trial

In terms of timing, one would expect to get a trial date sometime between 12 and 18 months from issue of the proceedings. The Court encourages parties to try to settle their disputes without going to trial and this allows some room for a stay of the proceedings to allow the parties to negotiate through informal or formal mediation.

Disclosure is a process whereby the parties are required to confirm whether a document exists or has existed. This does not necessarily mean that the other side is entitled to inspect the document (for example, privileged documents). The obligation is to search for, and disclose, documents currently or formerly in a party’s control. The general rule is that a party must carry out a reasonable search for documents and must generally disclose to its opponent:

• Documents on which it relies
• Documents which adversely affect its or any other party’s case
• Documents which support another party’s case

What is deemed a reasonable search is dependent on the number of documents involved, the nature and complexity of proceedings, the ease and expense of retrieving a document and the significance of any document. The litigant must certify the extent of the search carried out and that, to the best of its knowledge, it has complied with its duty of disclosure. The duty of disclosure continues until proceedings are concluded. A “document” includes all media on which information is recorded – it includes electronic information, and can, in principle, extend to deleted data. There are specific provisions in the rules for electronic disclosure.

Privilege entitles a party to withhold evidence from production to a third party or the Court. There are various forms of privilege, including:

• Legal professional privilege is available in respect of certain documents. This can be sub-categorised into legal advice privilege and litigation privilege.
• Legal advice privilege means that a party is not required to permit inspection, if a document is a confidential communication between a lawyer and his client for the dominant purpose of obtaining or giving legal advice. This would include an attendance note made by a solicitor after giving legal advice on the telephone to his client.
• Litigation privilege is available if a document is a confidential communication which is passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice or evidence or information for use in the conduct of litigation which was at the time reasonably in prospect. This would include communication between a lawyer and a witness or a lawyer and an expert (unless the court considers the instructions inaccurate or incomplete). This would also include internal memos between lawyers in the same firm working on a case or instructions to a barrister.

•  Without prejudice communications would cover documents whose purpose is a bona fide attempt to settle a dispute. Without prejudice save as to costs means a court will not see the document’s contents unless it is considering costs.
• Privilege against self-incrimination is available for documents that would expose a party to criminal penalties.

The main remedies available in commercial disputes are:

• Damages
• Injunctions
• Declarations
• Possession orders (orders seeking possession of land or property)

Injunctions may take various forms. The most common type is a prohibitory injunction, preventing the defendant from taking certain steps. There are also mandatory injunctions, requiring the defendant to do something (although the Courts are more wary of granting such an injunction). Interim injunctions (provisional measures made before trial, which remain in force until discharged by the court) are also available, including:

• Freezing Injunctions – these prevent a defendant from disposing of or otherwise dealing with his assets until judgment can be enforced

• Search Orders – these allow claimants’ representatives (usually solicitors) to enter and search the defendant’s premises (supervised by an independent solicitor) to remove specified material to preserve evidence or property. They are being used particularly in the intellectual property field, to seize material produced in breach of copyright. It should be noted that these are difficult instruments to wield as the Court considers them a draconian remedy, and they are not intended as a way to obtain evidence. Therefore the evidence in support has to be very strong and there are significant sanctions for abuse.

This is entirely dependent on the circumstances of the case (i.e. the value of the claim, the complexity of the issues). The cost of taking a typical commercial case to trial in England and Wales is likely to cost more than in most other jurisdictions. Indeed the cost may well run into hundreds of thousands of pounds. This is largely the result of the adversarial procedure and the structure of the litigation process. There is no scale fee for litigation. A party only pays for the work done. English lawyers on the whole deal on the basis of hourly rates. It is sometimes possible to enter into “conditional fee agreements”, whereby some or all of the lawyers’ fees are payable only in specified circumstances. However, there are strict rules governing these and your lawyer will advise you whether it is possible. Under new rules introduced on 1 April 2014, subject to some exceptions, parties engaged in litigation must file and exchange cost budgets, setting out their estimated costs for each stage in the proceedings. The Court may then control the parties’ budgets in relation to the costs which can be recovered from the other side at the conclusion of the dispute.

The vast majority of civil cases tried in court do not have a jury and they will be presided over by one Judge. This Judge decides a case by finding facts, applying the relevant law to them and then giving a reasoned judgment. In the adversarial system each party in turn presents its evidence (witness of fact and expert witnesses) and legal arguments to the Judge. Witnesses may be cross-examined by the opposing party and the Judge may also ask questions. Each party is also given an opportunity to sum up at the end of the trial. When this has been done, the Judge will deliver his judgment. Usually a Judge will require time in which to consider his judgment and the trial will be adjourned until a convenient date when the judgment will be given.

There are limited grounds on which an appeal can be made. The appeal court will allow an appeal where the decision of the lower court was one of the below:

• Wrong, which includes:
• An error of law; or
• An error of fact; or
• An error in the exercise of the court’s discretion
• Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

The general rule is that the unsuccessful party in the litigation will pay part of the costs of the successful party. If such an order is made, costs are agreed between the parties or assessed by the Court and as a rule of thumb the loser will pay about half to three quarters of the successful party’s legal costs. You should therefore be aware that even if you win you may still have legal fees to pay. However, the court may make a different order to take account of the conduct of the parties, and whether the successful party has succeeded on all the issues in dispute. There are ways in which a party can protect their position against the risk of paying the costs of the successful party, for example, by making a without prejudice save as to costs offer to settle the proceedings.