• Search

Litigation

Last verified on Thursday 22nd June 2017

England & Wales

James Farrell and Maura McIntosh
Herbert Smith Freehills LLP

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
    1. Civil claims are litigated mainly in the County Court and the High Court. Claims under £100,000 normally have to be commenced in the County Court.

      The High Court has three divisions:

      • The Queen's Bench Division, which deals with claims in contract and tort. This division includes the specialist Commercial Court and the Technology and Construction Court.
      • The Chancery Division, which specialises in intellectual and other property-related disputes, banking and company work, as well as disputes over land and trusts. The specialist Companies Court and Patents Court are both part of this Division.
      • The Family Division.

      There is also a specialist Financial List, which was introduced in October 2015 and is operated jointly by the Commercial Court and the Chancery Division. It deals with high value financial markets claims, or those that require particular expertise or raise issues of general importance in the financial markets.

      From June 2017, the “Business and Property Courts of England and Wales” will be the new name for England and Wales’ international dispute resolution jurisdictions, encompassing the Commercial Court, the Technology and Construction Court and the courts of the Chancery Division.

      Appeals are generally to the Court of Appeal (Civil Division) and ultimately the Supreme Court, which in October 2009 replaced the Appellate Committee of the House of Lords as the highest UK court. The Court of Appeal and the lower courts are bound to follow previous decisions of both the Supreme Court and Court of Appeal under the doctrine of precedent.

      Judges are appointed on the recommendation of an independent Judicial Appointments Commission. Civil cases are normally heard by a single judge at first instance, save that there is a presumption of trial by jury for claims in malicious prosecution and false imprisonment. (A similar presumption for libel and slander claims was removed by the Defamation Act 2013 which came into force on 1 January 2014.)

  2. 2.The legal profession
    Describe the general organisation of the legal profession.
    1. England and Wales has a split profession, with barristers tending to specialise in advocacy skills and solicitors on the provision of legal services directly to clients. There is however an ever-increasing mingling of the roles, with solicitors able to obtain rights of advocacy in the higher courts and barristers able to accept instructions directly from the public in certain circumstances.

      As a result of changes implemented in October 2011, legal services can be offered through "Alternative Business Structures" (or ABSs) as well as traditional law firms. This means that non-lawyers can own and invest in law firms, and share in their management and control.

      Foreign lawyers may practise in England and Wales, subject to registration requirements for certain types of activity. Lawyers qualified in certain jurisdictions may be admitted as solicitors in England and Wales via the Qualified Lawyers Transfer Scheme.

  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
    1. The government recognises that individuals and businesses have a fundamental right of access to justice, but is keen to minimise the costs of litigation both for the parties and for the public purse.

      In November 2008 a Court of Appeal judge, Lord Justice Jackson, was appointed to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations "to promote access to justice at proportionate cost". His recommendations were published in January 2010 and largely implemented in April 2013. In general terms, the reforms are aimed at ensuring that the costs and funding system is not balanced too strongly in favour of claimants, as the government perceived it was previously.

      In recent years the government has pursued a policy aimed at making the civil court system self-funding and, for some types of claim, more than self-funding as the aim is to recover more in fees than the cost of running the services to which they relate. In March 2015 the government introduced new percentage-based fees to issue money claims over £10,000, calculated as 5 per cent of the claim value, subject to a cap of £10,000. This was roughly a fivefold increase over previous fee levels for claims over £300,000. 

      The UK's planned departure from the EU in March 2019 will not have a significant impact on civil procedure, though it will affect the applicable rules relating to choice of law, jurisdiction and enforcement of judgments.

    Jurisdiction

  4. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
    1. There are two quite separate regimes under which the English court will accept jurisdiction over a civil and commercial matter. Which regime applies depends in large part on the domicile of the parties to the dispute and whether they have agreed on the jurisdiction to govern disputes.

      Where the defendant is domiciled within a member state of the European Union (EU), so that the recast Brussels I Regulation (1215/2012) applies (with the exception of Denmark, where the Brussels I Regulation (44/2001) continues to apply pending implementation of the recast Regulation), or the European Free Trade Area (EFTA) (Norway, Switzerland and Iceland), so that the Lugano Convention applies, the basic principle is that the defendant should be sued in the courts of its domicile. However, that principle may be displaced in certain circumstances, including where the parties have agreed that the courts of another member state are to have jurisdiction. Where the defendant is not domiciled within the EU or EFTA and the parties have not chosen the jurisdiction of a member state's court, the common law rules will generally apply. Absent a jurisdiction clause, the question of whether the English court will accept jurisdiction depends on considerations of service within or outside the jurisdiction, or submission to the jurisdiction, as well as whether England is the most appropriate forum for determining the dispute. 

  5. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
    1. The English courts regularly deal with disputes where one or more parties are based outside of the jurisdiction. In the Commercial Court, in approximately 80 per cent of cases at least one party is from outside the UK, and in approximately 50 per cent of cases all parties are from outside the UK. This reflects the fact that English law is often chosen by international businesses to govern their contracts or transactions, frequently accompanied by a jurisdiction clause providing for litigation before the English courts.

      English law provides a combination of predictability and flexibility, with courts following previous decisions (under the doctrine of precedent) but adapting them where needed to meet changing business needs and public policy. English law also recognises the importance of freedom of contract and, in most cases, the courts will strive to give effect to an agreement according to the parties' intentions.

      The English courts are also chosen because of the expertise of the English judiciary, as well as its reputation for integrity and impartiality. In addition the adversarial system, with rigorous disclosure requirements and a "cards on the table" approach, is often seen as an advantage.

  6. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
    1. Where proceedings involving the same cause of action and between the same parties are already pending before the courts of an EU or EFTA member state, the English court must stay its proceedings until the court first seised has determined the question of its jurisdiction. Under the recast Brussels I Regulation, however, there is an exception where the proceedings come within an exclusive jurisdiction clause in favour of an EU member state court (other than Denmark, for the time being) and proceedings have been commenced in that court. Where that is the case, the chosen court has priority, regardless of which court is first seised.

      Where the proceedings do not involve the same cause of action or are not between the same parties, but are otherwise related, the English court has a discretion to stay its proceedings.

      Where competing proceedings are pending before the courts of a non-EU/EFTA state, the English court's approach depends on whether its jurisdiction derives from the European regime or the common law:

      • In the latter case, if the defendant has been served with the claim within the jurisdiction of the English court, the court has a discretion to stay its proceedings where the defendant establishes that there is a more appropriate forum for the resolution of the dispute. Where the proceedings have to be served out of the jurisdiction, the court will not grant permission unless England is the proper place to bring the claim. In either case, the fact that proceedings are already pending elsewhere is one factor that the court may take into account in determining the appropriate forum.
      • In the former case, and unless there is a jurisdiction clause in favour of the English court, the court has a discretion to stay its proceedings under the recast Brussels I Regulation where prior proceedings involving the same cause of action and between the same parties have been brought in a non-member state court. On its face, the Regulation will not allow the English court to stay its proceedings in favour of proceedings in a non-member state court where the English proceedings were commenced first, but whether or not there may still be a power to stay in some circumstances remains untested. 
  7. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

    1. The English court will generally stay its proceedings in favour of arbitration if there is prima facie evidence of a valid arbitration agreement between the parties which covers the dispute. In relation to arbitration agreements with a foreign seat, this reflects the UK's obligations under the New York Convention.

      The court may also grant an anti-suit injunction to prevent parties pursuing litigation in a foreign jurisdiction where that would breach an arbitration agreement, save that it is generally accepted that such an injunction cannot be granted in respect of litigation proceeding before the courts of a member state of the EU or EFTA following the 2009 decision of the European Court of Justice in Allianz SpA v West Tankers Inc (C-185-07). However, this decision pre-dated the coming into force of the recast Brussels I Regulation and there has been no reference to the CJEU on the availability of anti-suit injunctions to protect an arbitration agreement under the recast Brussels I Regulation.

      The question of whether an anti-suit injunction issued by an arbitral tribunal to restrain proceedings in a member state court would be recognisable and enforceable within the EU is a question of national and international law (ie, the New York Convention) rather than the Brussels regime, as confirmed by the CJEU in the Gazprom case (C-536/13).

      The courts will entertain interim proceedings in support of an arbitration in accordance with section 44 of the Arbitration Act 1996. This provides that, unless otherwise agreed by the parties, the court has in relation to arbitral proceedings the same power of making orders about the matters listed in section 44(2) of the Act as it does in relation to legal proceedings. Those matters include the granting of an interim injunction. The court's powers may be exercised even if the seat of arbitration is outside England and Wales or Northern Ireland or no seat has been designated, provided that the fact that there is a foreign seat does not make it inappropriate to exercise those powers.

  8. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
    1. An arbitration award (including an award on jurisdiction) can be appealed to the court only on limited grounds:

      • There is a right to challenge an award on the grounds of the tribunal's lack of jurisdiction or because of a serious irregularity affecting the tribunal, the proceedings or the award that has caused or will cause substantial injustice. These rights cannot be excluded by agreement between the parties.
      • A party may also appeal to the court on a question of English law, with the agreement of all the other parties to the proceedings or the permission of the court. Permission will only be given if particular cumulative criteria are met. The right to appeal on a point of law may however be excluded by agreement. An agreement that the arbitrator need not give reasons for his or her decision is treated as an agreement to exclude this right of appeal.

      There is no right to appeal to the court on a question of fact.

  9. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
    1. In appropriate cases, the English courts may grant an anti-suit injunction to restrain a party from pursuing proceedings where this is in breach of an exclusive jurisdiction clause, or an arbitration clause, or a covenant not to sue. It is also available where the foreign proceedings are vexatious, oppressive or unconscionable. However, an anti-suit injunction cannot be granted to restrain the pursuit of civil or commercial proceedings before the courts of an EU member state (or, almost certainly, an EFTA state court, although this is untested).

  10. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

    1. In broad terms, sovereign immunity is enjoyed by a foreign or commonwealth state, including the sovereign of the state in his or her public capacity, the government of the state and any government department, but not to any entity (a "separate entity") which is distinct from the executive organs of government of the state and capable of suing or being sued. A separate entity is immune from the jurisdiction of the UK courts only if (i) the proceedings relate to anything done by it in the exercise of sovereign authority; and (ii) the circumstances are such that a state would have been so immune.

      Immunity under English law has two limbs – immunity as to the jurisdiction of the courts and immunity of assets from execution.

      • There is immunity from adjudicative jurisdiction unless one of a number of exceptions applies. The exceptions include: where the proceedings relate to a commercial transaction entered into by the state; or where there has been a submission to the jurisdiction of the courts.
      • The property of a state is immune from enforcement of a court judgment or arbitral award, save where an exception applies. These are where: a state has given written consent to such enforcement; or, the property of the state is for the time being in use or intended for use for commercial purposes. The "commercial purposes" exception does not apply to pre-judgment attachment and injunctive relief will only be available if a state has given written consent. 

    Procedure

  11. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
    1. Proceedings are commenced by the issue of a claim form, which must be filed at court and served on the defendant. The civil justice system in England and Wales is adversarial, so that the onus is primarily on the parties to advance the proceedings.

      However, as a result of changes introduced by the Civil Procedure Rules (CPR) in 1999, the court must actively manage cases in order to further the "overriding objective" of dealing with cases justly and at proportionate cost. Active case management includes such things as identifying the issues at an early stage, encouraging the use of alternative dispute resolution where appropriate, fixing timetables or otherwise controlling the progress of the case, and giving directions to ensure that trial proceeds quickly and efficiently.

  12. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
    1. The claim form sets out details of the parties and the claim, either in the claim form itself or in a separate document called the particulars of claim. The claimant must plead the facts necessary to support the cause of action. The claim form and particulars of claim must be verified by a statement of truth, which is a statement that the claimant believes the facts stated in it to be true. Signing a false statement of truth, without an honest belief in its truth, is a contempt of court, which may be punished by imprisonment.

  13. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
    1. If a defendant wishes to dispute the claim, it must file a defence, in most cases within 28 days from service of the particulars of claim although this may be extended by agreement or court order. A copy of the defence must be served on every other party.

      The defence must state which allegations in the particulars of claim are admitted, not admitted and denied. Where an allegation is denied the defence must give reasons and, if the defendant intends to put forward a different version of events from the claimant, it must state that version. The defence must be verified by a statement of truth.

  14. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
    1. Statements of case (the particulars of claim, the defence and any reply to the defence) may be amended at any time before they have been served. Thereafter they may be amended only with the written consent of all the other parties, or with the court's permission.

      A party may request an opponent to clarify any matter which is in dispute in the proceedings, or give additional information in relation to any such matter. If a response is not given voluntarily, the court may order a response to be given. Any such response must be verified by a statement of truth.

      In some cases, third parties who have an interest in the dispute will be permitted to intervene and make submissions to the court. This is most common in appeal proceedings.

  15. 15.Publicity
    To what degree are civil proceedings made public?
    1. A non-party to proceedings can obtain, without the court’s permission, a copy of a statement of case (including the claim form, particulars of claim and defence) or a judgment or order made in public. Any other document is available only with the court’s permission. The court may make an order restricting access to statements of case, on the application of a party or any person identified in the statement of case.

      The general rule is that hearings take place in public. However, the court can permit all or part of a hearing to be held in private, or for the parties to be anonymised, in some circumstances.

      Supreme Court hearings and judgments can be viewed live over the internet and, since May 2015, an "on-demand" archive of past hearings is also available. Live broadcasts are also permitted of the legal arguments and the final judgment in Court of Appeal hearings, following changes introduced in October 2013. Filming is not permitted in other courts.

    Pretrial settlement and ADR

  16. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
    1. A court will not normally render interim assessments about factual or legal issues in dispute. It is however possible for parties to request early neutral evaluation (ENE), whereby a judge (usually different to the trial judge) may give the parties a non-binding (unless the parties otherwise agree) evaluation of the merits of the case (or part of it), for the purpose of helping them settle the dispute. However, this is not a commonly used procedure.

      The courts strongly encourage parties to settle disputes but will not force a party to engage in settlement discussions or ADR if it is unwilling to do so. As such, there are currently no mandatory settlement conferences, but see question 17 regarding automatic referral to mediation.

  17. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
    1. Parties are not compelled to engage in ADR, but it is strongly encouraged (particularly in the form of mediation) at all stages of proceedings, including before the action commences.

      Formal pre-action protocols require parties to consider ADR. Once proceedings have commenced, the court is required to manage cases in accordance with the overriding objective of dealing with cases justly and at proportionate cost, which includes encouraging parties to use an ADR process if appropriate. The court may stay proceedings for such period as it thinks fit to allow for ADR or settlement, including on its own initiative (although stopping short of ordering the parties to engage in ADR).

      The court's most powerful tool to encourage parties to consider ADR is its power to impose costs sanctions on a party if it considers that the party's refusal to engage in ADR (or other conduct obstructing it from proceeding) was unreasonable – usually by depriving the party of some or all of the costs it would otherwise have been awarded. In deciding whether a party had acted unreasonably in failing to engage in ADR, the court will consider the nature of the dispute, the merits of the case, the extent to which other settlement methods had been attempted, whether the costs of ADR would have been unreasonably high, whether delay would have been prejudicial, and whether ADR would have had a reasonable prospect of success. However, given the courts' strong encouragement of ADR, the circumstances in which a party may successfully persuade a court that a failure to engage in ADR was reasonable are increasingly limited. The courts expect the parties to engage with each other constructively to discuss whether mediation is appropriate – a party who simply ignores an invitation to mediate will as a general rule be regarded as having acted unreasonably and will be penalised in costs, even if it would have had good grounds for expressly declining mediation at that time.

      The Court of Appeal runs a mediation scheme under which a judge considering an application for permission to appeal is required to consider whether the matter is suitable for mediation. If so, details are sent to the Centre for Effective Dispute Resolution, who will invite the parties to attend a mediation. The full court may also propose mediation. Parties are not obliged to take part in the scheme and are free to terminate a mediation at any time without giving any reason. 

      While the scheme relies on the parties agreeing to mediate, the degree of judicial encouragement is such that a refusal by one party could be clear evidence of unreasonableness, attracting cost sanctions. Other ADR procedures currently offered by the courts include the ENE procedure referred to in question 16 and a TCC settlement process, in which a judge acts as a settlement judge in a procedure analogous to mediation.

    Interim relief

  18. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
    1. The court has power to grant various forms of interim relief, including interim injunctions, freezing injunctions, search orders, security for costs, interim payments and specific disclosure.

  19. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
    1. The requirements vary depending on the interim remedy sought. For some types of interim remedy (eg, security for costs and interim payments) the court rules set out threshold conditions that must be satisfied to obtain relief. For other types (eg, freezing injunctions and search orders) the test for obtaining relief is largely a matter of case law.

      An interim remedy may be granted without notice to the respondent if it appears to the court that there are good reasons for not giving notice, generally in cases of great urgency or where giving notice would enable the respondent to take steps to defeat the purpose of the remedy sought (eg, a freezing injunction or search order). Where an order is granted without notice, however, the respondent will have an opportunity to seek to set it aside subsequently.

      Interim remedies are discretionary and, in considering whether to grant an interim remedy, the court must seek to give effect to the overriding objective of dealing with cases justly and at proportionate cost.

    Decisions

  20. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
    1. The court can award various remedies, most commonly:

      • Compensatory damages;
      • Declarations;
      • Injunctions (prohibitory or mandatory); or
      • Specific performance (a form of mandatory injunction).
  21. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
    1. The court may strike out a party's claim or defence (in whole or in part) if it appears to the court that:

      • it discloses no reasonable grounds for bringing or defending the claim;
      • it is an abuse of the court's process or otherwise likely to obstruct the just disposal of the proceedings; or
      • there has been a failure to comply with a rule, practice direction or court order.

      In some cases the court may make an "unless order" which means that if a party fails to comply with the order, the specified sanction (such as striking out the party's claim or defence) will apply automatically.

      The court may also give summary judgment against a claimant or defendant (on the whole claim or a particular issue) if the relevant party has no real prospect of succeeding in its claim or defence, and there is no other compelling reason why the case or issue should be disposed of at trial.

  22. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
    1. A claimant may obtain judgment in default where the defendant has failed to file an acknowledgement of service, or alternatively a defence, within the relevant time limits. Judgment in default may be entered in respect of a claim or a counterclaim.

  23. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
    1. The timing varies greatly depending on the size and complexity of a matter. It will normally take somewhere between six months and two years to take a case from the issue of proceedings through to trial and judgment, but this can be longer for very substantial disputes.

    Parties

  24. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
    1. A new party can be added or substituted as a claimant or defendant to proceedings in certain circumstances. The court's permission is required, unless the claim form has not yet been served. Particular restrictions apply where a change of parties is sought after the expiry of a relevant limitation period.

      Third parties can also be brought in to proceedings as additional parties. For example, a party may be added where a defendant wishes to claim a contribution or indemnity from a third party in respect of any liability to the claimant. The court's permission is needed in some circumstances.

      Failure to join a particular party may preclude a later claim being brought against that party under the principle in Henderson v Henderson [1843-1860] All ER Rep 378, where the allegations could and should have been raised in the previous action and the later action is found to be an abuse of process. This principle is, however, less likely to be applied to proceedings against a new party, as opposed to re-litigation of claims against the same defendant (see question 39).

      Third parties who have an interest in a dispute can apply to intervene and make submissions. This is however most common in appeal proceedings.

      See also question 35 below regarding mechanisms for pursuing class actions.

    Evidence

  25. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
    1. Civil proceedings in England and Wales are adversarial, and therefore the court will rely on the parties to obtain and present the evidence needed to put forward their respective cases.

      In respect of expert evidence, however, the court may direct that the parties' experts give their evidence concurrently (a procedure known informally as "hot-tubbing"). Where this procedure is used, the judge will generally take a more active role in asking questions of the experts at trial, though the parties' advocates may also ask questions of them. 

  26. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
    1. Under the CPR parties are generally required to disclose to their opponents certain documents which are or have been in their control. The court must decide on the appropriate order for disclosure, having regard to the overriding objective and the need to limit disclosure to what is necessary to deal with the case justly. In many cases, the court will order "standard disclosure" which essentially requires each party to disclose documents which either support or adversely affect any party's case (and this was the default position for disclosure up until 1 April 2013). Parties are required to carry out a "reasonable search" for documents falling within their disclosure obligations.

      Parties can withhold inspection of documents falling within their disclosure obligations in certain circumstances, most importantly where the documents are subject to legal professional privilege.

      Failure to comply with a party's disclosure obligations can result in severe sanctions by the court, including costs penalties and, in extreme cases, adverse inferences.

  27. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

    1. Parties must exchange written statements of their witnesses' evidence, verified by a statement of truth. These witness statements will normally stand as evidence-in-chief, so that the witnesses do not need to address matters covered in the statements in their oral evidence at trial. They may however be given the opportunity to amplify their statements orally. The opposing party can then cross-examine the witness, following which the party who has called the witness will have a chance to re-examine. They witness may also be asked questions by the judge.

      If a witness statement is not served within the time limit specified by the court, the witness may not be called to give evidence at trial unless the court gives permission. Conversely, a party may choose to rely on a witness statement without calling the witness to give oral evidence at trial, although this is likely to affect the weight the court will attach to the witness's evidence. In these circumstances, the opposing party can apply to the court for permission to call the witness for cross-examination.

      Evidence for pretrial hearings is normally dealt with by written witness statements alone.

      Witness preparation is allowed so long as it does not amount to coaching, ie influencing a witness as to the evidence he or she will give. In practice, this means lawyers should not engage in practice sessions in which the witness rehearses the evidence or answers that might be given to questions relating to the case.

  28. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
    1. Experts are appointed by the parties but the court's permission is required to call an expert or put an expert's report in evidence.

      The role of an expert is to help the court on matters within his or her expertise. This duty overrides any obligation to the party who has instructed the expert.

      The parties will exchange written expert reports, following which the court will normally direct that the experts meet to identify and seek to narrow the expert issues, and prepare a written statement for the court setting out the issues on which they agree and disagree. The experts will normally be called to give oral evidence at trial, unless their evidence is fairly uncontroversial. See also question 25 regarding the optional procedure of concurrent expert evidence or "hot-tubbing".

  29. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
    1. Yes, a party to proceedings (or its directors and officers) can act as a witness, and in appropriate circumstances a court may draw adverse inferences from the party's failure to give evidence where they might be expected to have material evidence to give on an issue.

  30. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
    1. Foreign law is treated as a question of fact, to be proved by expert evidence from appropriately qualified individuals (typically a practitioner or academic lawyer qualified in the relevant legal system).

      Where a party wishes to rely on foreign language documentation, a translation will be obtained. Normally the parties will agree the translation or, if agreement cannot be reached, each party will put forward its proposed translation.

  31. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
    1. The standard of proof in civil litigation is the balance of probabilities. This applies in all civil cases, regardless of the seriousness of the allegations: Re S-B Children [2009] UKSC 17. However, where the events alleged are inherently improbable, a party may require better evidence to persuade the judge that they are more likely than not to have occurred and therefore to meet this standard of proof.

    Appeals

  32. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
    1. The routes of appeal are set out below. In most cases, permission to appeal is required.

      • Appeals from decisions of the Court of Appeal are to the Supreme Court, which is the court of final appeal.
      • Appeals from decisions of a High Court judge are to the Court of Appeal (save in exceptional cases where a "leapfrog" appeal may be brought direct to the Supreme Court).
      • Other decisions of the county court or the High Court may be appealed to a circuit judge in the county court, a High Court judge or the Court of Appeal, in each case depending on the nature/track of the claim, the judge who made the decision and the nature of the decision.
  33. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?

    1. An appeal will be allowed where the lower court's decision was either wrong or was unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The appeal will normally be limited to a review of the lower court's decision rather than a full re-hearing.

      It is possible to appeal against findings of both law and fact, though it will normally be more difficult to appeal against the latter as the appeal court will give appropriate weight to the findings of the trial judge bearing in mind his or her advantage in having heard oral witness evidence.

  34. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
    1. Under the Court of Appeal's practice guidance for cases filed after 31 July 2015, the target dates for an appeal hearing vary between six and 19 months from when the appeal is filed, depending on the type of appeal and whether permission was granted by the lower court or, if by the Court of Appeal, whether on paper or at an oral hearing. If, however, the appeal has been expedited the hearing should take place much sooner. 

      The appeal court may give its decision at the end of the appeal hearing or (more likely for substantial matters) reserve judgment to be handed down at a future date, which could be weeks or months later depending on the complexity of the matter and the competing commitments of the appellate judges. Most judgments are handed down within three months of the hearing.

    Special proceedings

  35. 35.Class actions
    Are class actions available?
    1. There are a number of options for pursuing claims collectively:

      • Representative actions under CPR 19.6: where a claim is brought by or against one or more persons as representatives of any others who have the “same interest” in the claim;
      • Group Litigation Orders (GLOs): the court can make a GLO where a number of claims are brought which give rise to “common or related issues of fact or law";
      • Without a formal collective action mechanism: by either including a large number of claimants in the same action, by consolidating existing claims, or by running one or more claims as a "test case" that can be used to resolve similar claims;
      • Collective proceedings in the Competition Appeal Tribunal (CAT) under the Consumer Rights Act 2015: This procedure was introduced in October 2015. Proceedings can be brought on behalf of a class (whether consumer or business) in both "follow-on" and stand-alone cases for breach of competition law. Controversially, claims may be brought on either an opt-in or an opt-out basis, subject to certification by the CAT.
  36. 36.Derivative actions
    Are derivative actions available?
    1. Shareholders have a statutory right under the Companies Act 2006 to bring a derivative claim against directors, and others in certain circumstances, to recover loss suffered by the company as a result of a director's negligence, default, breach of duty or breach of trust.

      The previous pre-conditions for bringing a derivative action under the common law, most notably the requirement to establish “wrongdoer control” and “fraud on the minority”, no longer apply. The court's permission must, however, be obtained in order to bring a derivative action. Any damages awarded will be paid to the company, rather than the shareholder who brings the claim on behalf of the company.

  37. 37.Fast-track proceedings
    Are fast-track proceedings available?
    1. The court has a discretion to order an expedited trial in matters of urgency.

      Smaller value claims are dealt with using simplified procedures (for example regarding disclosure and costs) under the small claims track or fast track. Currently the limits are £10,000 for small claims and £25,000 for fast track.

      There is also the possibility of bringing certain types of claim, including those which are unlikely to involve a substantial dispute of fact, under a streamlined procedure set out in CPR Part 8.

      In May 2015 the courts issued a consultation regarding a proposed pilot of shorter, more flexible procedures (including more limited disclosure and oral evidence) that could be adopted in appropriate business cases. The results of that consultation are awaited. 

      Two pilot schemes, the Shorter Trials Scheme and the Flexible Trials Scheme, were introduced for claims commenced from 1 October 2015. They are currently set to run until October 2018. The schemes allow for shorter and more flexible procedures for claims brought in the Rolls Building courts (including the Commercial Court, the Chancery Division and the Technology and Construction Court).

  38. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
    1. Court proceedings in England and Wales will be conducted in English or (in Wales) the Welsh language may be used. Where a party or witness requires it, an interpreter may be used.

    Effects of judgement and enforcement

  39. 39.Effects of a judgment
    What legal effects does a judgment have?
    1. A judgment will be binding on the parties and any others who have a legal or beneficial interest in the litigation (eg a trustee in bankruptcy) under the doctrine of res judicata. Neither will be permitted to re-litigate the same cause of action, unless fraud or collusion is alleged so that the earlier judgment can be set aside. Nor will they be permitted to re-open any issues determined in the action in subsequent litigation against the same parties, unless there is fresh evidence which could not have been found with reasonable diligence for use in the earlier proceedings or there is a subsequent change in the law.

      A party may also be prevented from putting forward allegations in subsequent proceedings against the same or different parties where those allegations could have been, but were not, raised in the previous action (under the principle in Henderson v Henderson [1843-1860] All ER Rep 378) or where this amounts to a collateral attack on the previous decision. In either case the court has power to strike out the subsequent claim (in whole or in part) as an abuse of process.

  40. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
    1. The principal means of enforcement are:

      • Taking control of goods (which replaced "execution against goods" from 6 April 2014), by a writ of control in the High Court or a warrant of control in the County Court, whereby the enforcement officer has authority to seize and sell the debtor's property;
      • Third party debt orders, which redirect to the creditor third party payments due to the debtor (such as where the debtor's salary is normally paid into his bank account);
      • Charging orders over land or securities; and
      • Insolvency proceedings.
  41. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
    1. Judgments from the courts of EU member states (which are governed by the Brussels Regulations) and EFTA states (which are governed by the Lugano Convention) will be automatically recognised in England and Wales and, subject to certain procedural formalities and rules of public policy, will be directly enforceable. Judgments from EU member states may also be enforceable under the European Enforcement Orders procedure, which applies to uncontested claims.

      There are also special procedures for enforcing judgments from countries with whom the UK has entered into bilateral registration arrangements (principally some members of the Commonwealth) under the Administration of Justice Act 1920 and Foreign Judgments Enforcements Act 1933.

      Where there are no relevant conventions or treaties in place (such as for the United States) it is necessary to sue on the judgment debt under the common law.

    Costs

  42. 42.Costs
    Will the successful party’s costs be borne by the opponent?
    1. The general rule is that the unsuccessful party will be ordered to pay the successful party's reasonable costs, but the court can make a different order. In exercising its discretion on costs, the court must have regard to all the circumstances including the conduct of the parties and whether a party who is unsuccessful overall has nonetheless succeeded on part of his case.

      From 1 April 2013, a regime of "qualified one-way costs shifting" has applied to personal injury cases. This means that the claimant will normally be awarded costs if successful, but will not have to pay the defendant's costs if the claim is lost (subject to certain exceptions).

      Where a party is awarded its costs, the court will also assess the amount of the costs to be paid unless that is agreed between the parties. In some cases, the parties are required to exchange detailed costs budgets at an early stage of the proceedings. A party's recoverable costs may be restricted by reference to its court-approved budget (though the court can depart from the budget if there is good reason to do so). In some types of case, such as lower value road traffic accident claims or where a money claim is not contested, the amount of recoverable costs is fixed under court rules. There have recently been calls to expand the application of fixed recoverable costs; a review is currently under way, which is expected to report by 31 July 2017.

  43. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
    1. Legal aid is available for some types of civil case but is subject to a strict financial eligibility test, as well as a merits test. Legal aid is not generally available for business disputes.

      Parties can enter into conditional fee agreements (CFAs) under which their lawyer receives no payment (or a lower payment) if the case is lost but can receive an uplifted fee if the case is won. The uplift is known as a success fee and cannot be more than 100 per cent of the normal fee. Parties can also take out "after-the-event" (ATE) insurance to cover the risk of being ordered to pay an opponent's costs if their case is unsuccessful.

      For such arrangements entered into before 1 April 2013, the CFA success fee and ATE premium may be recovered from the opponent (subject to reasonableness) if the case is successful. From that date onward, as a result of the implementation of recommendations made by Lord Justice Jackson, parties can still enter into CFAs and take out ATE insurance to fund their litigation, but cannot recover the additional costs of doing so (subject to limited exceptions).

  44. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
    1. Contingency fees, where the lawyer is paid a share of any damages recovered, were not permissible for civil litigation in England and Wales before 1 April 2013 (although they were permitted for employment tribunal cases).

      These restrictions on the use of contingency fees were removed from that date as a result of the implementation of Lord Justice Jackson's recommendations, so that parties can now enter into contingency fee arrangements or "damages-based agreements" (DBAs) as they are referred to in the legislation. Although the lawyer’s fee under a DBA is based on the damages awarded, a losing defendant will only have to pay costs on a conventional basis (ie, hourly rates and disbursements). The claimant will be liable for any shortfall between the amount recovered and the lawyer’s fee.

      Contingency fees for most types of claim are subject to a 50 per cent cap. In employment tribunal cases (where contingency fees were already permitted) the previous 35 per cent cap continues to apply. Personal injury and clinical negligence claims are subject to a 25 per cent cap.

  45. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
    1. Third-party funding is permitted for litigation in England and Wales, unless the funding agreement is found to be contrary to public policy. Generally an agreement will be upheld so long as the funder does not control the litigation.

      Typically the third party will fund the litigation in return for a share of the proceeds of the claim if successful. If the claim fails, the third party may be liable for the defendant's legal costs.

      A code of conduct sets out standards to be observed by all funders who are members of the Association of Litigation Funders of England and Wales, in particular in relation to capital adequacy, withdrawal of funding and control over the litigation.

  46. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?
    1. Lawyers in England and Wales are not required to set their charges by reference to fee scales, and there are no upper or lower limits for the fees that may be charged where the lawyer is not acting under a CFA or contingency fee. The amount of costs that a party may recover from an opponent is, however, fixed in some circumstances – see question 42.

Interested in contributing to this Know-how?

E-mail our Co-Publishing Manager


GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
  2. 2.The legal profession
    Describe the general organisation of the legal profession.
  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
  4. Jurisdiction

  5. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
  6. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
  7. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
  8. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?


  9. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
  10. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
  11. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?


  12. Procedure

  13. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
  14. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
  15. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
  16. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
  17. 15.Publicity
    To what degree are civil proceedings made public?
  18. Pretrial settlement and ADR

  19. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
  20. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
  21. Interim relief

  22. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
  23. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
  24. Decisions

  25. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
  26. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
  27. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
  28. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
  29. Parties

  30. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
  31. Evidence

  32. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
  33. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
  34. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?


  35. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
  36. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
  37. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
  38. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
  39. Appeals

  40. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
  41. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?


  42. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
  43. Special proceedings

  44. 35.Class actions
    Are class actions available?
  45. 36.Derivative actions
    Are derivative actions available?
  46. 37.Fast-track proceedings
    Are fast-track proceedings available?
  47. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
  48. Effects of judgement and enforcement

  49. 39.Effects of a judgment
    What legal effects does a judgment have?
  50. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
  51. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
  52. Costs

  53. 42.Costs
    Will the successful party’s costs be borne by the opponent?
  54. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
  55. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
  56. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
  57. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?