Civil proceedings in the English Courts
19 June 2019
19 June 2019
This guide provides an overview of the litigation process in the courts of England and Wales.
This guide aims to provide a general indication of the procedure and steps that may be required in a civil matter in the English courts. Litigation can often be daunting for litigants unfamiliar with the English courts.
This Quickguide provides a general overview of the process, and explains particular features of English litigation that litigants need to be aware of. It also briefly looks at the process for appealing an English court judgment and the enforcement of English and foreign judgments.
The English civil court system is divided between the County Court, which deals with low value claims, and the High Court, which deals with claims over £100,000. The Civil Procedure Rules (CPR) set out detailed rules and guidance governing the litigation process in both courts. This Quickguide deals with the High Court only.
The High Court has three divisions: King's Bench, Chancery and Family. Most commercial and contractual disputes are undertaken in the King's Bench Division, which has a number of specialist courts including the Commercial Court and the Technology and Construction Court. The Chancery Division also deals with commercial matters, although it deals principally with company matters and business litigation including insolvency, trusts, wills and intellectual property. These specialist courts and the Chancery Division are collectively referred to as the Business and Property Courts.
High Court cases are heard by a single judge, with limited rights of appeal to the Court of Appeal and the Supreme Court.
The English court system operates on the principle of open justice. In practice this means that, absent exceptional circumstances, the public can access key court documents such as the documents setting out the claim and the defence. In addition, all hearings and the trial are conducted in public. As such, once proceedings are commenced and acknowledged, third parties (including the press) will be able to access the statements of case and certain other documents that are filed at court. If the matter goes to trial, during the course of the trial they will also have access to all the documents that are used in court, such as witness statements. Furthermore, the court may allow a non-party to inspect certain other documents on the court file, including written submissions and skeleton arguments and any specific documents which it considers necessary for them to inspect in order to meet the principle of open justice.
It is therefore important for any litigant to be prepared for their confidential information to be made public. If confidentiality is an issue, there are protective measures which can be taken, including asking the court to restrict access to the court files and entering into confidentiality agreements to protect confidential information. However, there is no guarantee that the court will allow this. Even if it does, the judge can lift the restrictions once the case goes to trial so that the documents become publicly available.
In exceptional circumstances, for example, cases concerning commercially sensitive intellectual property rights or personal financial information, a hearing in private may be permitted. Such cases are however rare.
Unlike, for example, the US courts, the English courts operate on a loser pays basis. Put simply, if you lose at trial you will not only have to pay your own costs but a substantial portion of the other side's costs as well (often referred to as adverse costs). Conversely, if you win at trial, you should receive a substantial portion of your own costs from your opponent, but by no means all of your costs.
In the English legal profession there is a division between specialist advocates (generically called barristers) and other lawyers (called solicitors). Barristers of exceptional talent and considerable experience (usually 20 years plus) can gain the recognition of their peers, and Judges, by being appointed "King's Counsel" (KC).
Solicitors can also appear in court if they have higher rights of audience (solicitor-advocates). However, it is common practice in English litigation for counsel to be instructed to assist with written advocacy (preparing statements of case) and to conduct any oral advocacy. As they are in court on a regular basis, their specialist knowledge and second opinion can be invaluable. That said, increasingly, law firms are developing their own specialist advocacy expertise.
Here we set out the main stages of a general commercial litigation claim (a Part 7 claim). Not all cases will follow this procedure; for example, claims for judicial review or disputes that raise only issues of contractual interpretation. However, the majority of general commercial disputes will follow the Part 7 procedure.
The English courts operate on the basis that litigation should be used as a last resort. In most cases, therefore, potential parties are required to take "pre-action" steps before a claim is issued. What is required depends on which particular pre-action protocol applies, but generally parties are expected to exchange sufficient information so that they each know the basis for the claim and the defence. If appropriate, the court will also expect parties to attempt settlement. The court has the power to penalise a party (usually by way of costs) where they have not complied with the pre-action rules, or have acted unreasonably before the commencement of proceedings.
Litigation is commenced when the claimant issues a Claim Form at court. This is a brief document that sets out the basis of the claim. The date of issue starts the litigation clock, and various steps have to be taken within short timescales thereafter.
First, the claimant has to serve the Claim Form on the defendant, as well as the more detailed Particulars of Claim (which set out the facts of the case and the relief sought from the court). This has to be done within four months or six months, depending on whether the defendant is served in or outside England and Wales. Service outside England and Wales (service out of the jurisdiction) can be time-consuming and difficult.
Once served, the defendant then serves an Acknowledgement of Service, in which it states whether it intends to defend the claim (and if it intends to challenge jurisdiction). If defended, the defendant has to serve its Defence and details of any Counterclaim within a short period. If the defendant fails to acknowledge the Claim Form, or serve a Defence, the claimant is entitled to enter a default judgment against the defendant at this early stage.
If a Defence is served, the claimant will usually respond by serving a Reply, and must serve a Defence to any Counterclaim, if there is one.
Collectively, these documents are known as statements of case and are usually served together with any key documents relied upon, i.e. documents on which the parties rely or that are necessary for the other party to understand the case.. As already mentioned, statements of case are public documents and details of their content can be obtained by non-parties to the claim, unless otherwise ordered by the court.
Once the statements of case have been served, the matter enters the case management phase, where the court will be keen to ensure that the case runs smoothly and efficiently. Parties are obliged to attempt to agree the timetable to trial (known as directions) which includes the dates when documentary evidence and witness statements will be exchanged, whether or not expert evidence is required and how long the trial is likely to take. The parties are also obliged to discuss electronic disclosure and attempt to agree how it should be approached. The parties may also be required to prepare a detailed costs budget which sets out costs incurred to date and the estimated future costs.
If the parties are unable to agree directions, or there are other issues that they need to discuss before the Judge, such as the costs budget, the parties will need to go to court to attend a Case Management Conference. The Judge will then decide the timetable (the order for directions) and settle other issues such as the extent of disclosure, the number of expert witnesses and, if necessary, approve the parties' costs budgets.
It is common for further Case Management Conferences and/or a Pre-Trial Review to take place during the course of a matter. The courts are keen to make sure that the parties remain on track, particularly once the case gets closer to trial. The courts adopt a strict approach to non-compliance with court rules and court orders. Consequently, a failure to meet a court-imposed deadline could result in severe penalties, such as a claim being struck out or evidence being disallowed.
This is the process by which each party provides copies of its documents to the other party. It is often the most expensive and time-consuming stage of litigation. The disclosure obligation can also be very broad and covers all documents under a party's control which are relevant to the issues in dispute, including those which adversely affect their case and support the other party's case. The definition of document is very broad and covers all types of electronic information. The parties will, therefore, need to consider at a very early stage where any relevant documents are and the process for collecting all the electronic documents.
Parties are also obliged to preserve any relevant documents which will require a hold being put on any document destruction policies. The courts take this very seriously and the parties may be required to confirm in writing that steps have been taken to preserve relevant documents
After the disclosure of documents, written witness statements are prepared setting out the evidence of the witnesses who have knowledge of the facts of the matter and on whose evidence the parties intend to rely at trial. These statements are served on the other parties in advance of the trial.
Where there are issues which require technical evidence or expert opinion, expert evidence will be required. Although appointed, and paid for by the parties, experts have a duty to give independent evidence to the court. It is not their role to put forward the instructing party's case. Expert reports will be exchanged before trial, and the court will often order a meeting of experts with a view to narrowing down the issues.
In preparation for the trial, the parties will normally agree and organise a bundle of relevant documents, which is lodged at court before the trial for the Judge to read. Often the court will require the parties to attend a Pre-Trial Review, to enable the Trial Judge to check that the timetable has been complied with, and also to agree how the trial will be run and evidence presented.
The trial begins with opening submissions from the advocates. The factual and expert witnesses will then give evidence and be cross-examined. Finally, the advocates will give closing submissions on the evidence and the law.
The judgment may be given immediately after the trial but is often "reserved" to a later date, sometimes several months, particularly in complex matters. This means that the parties will not know the Judge's decision until sometime after the end of the trial. In that case, it is common for the Judge to provide a copy of the judgment to the parties' legal representatives a day or two before the judgment is "handed down" in open court. During that time, the parties must not disclose it to any other person or use it in the public domain and no action may be taken (other than internally) in response. Whether or not the parties are supplied with a copy in confidence depends on whether or not it has been embargoed.
At the handing down hearing, the parties can seek any consequential orders, such as costs and permission to appeal.
An unsuccessful party can apply for permission to appeal a judgment (or part of it) or an order. A decision may be appealed only on the basis that it was either wrong or unjust due to serious procedural or other irregularity in the proceedings. The general rule is that notice of an appeal must be filed within 21 days of the judgment or order. An appeal to the Court of Appeal will on average take 15 months to be listed for hearing. The Supreme Court is the final court of appeal and hears appeals on arguable points of law of general public importance and concentrates on cases of the greatest public and constitutional importance. Where "exceptional circumstances" exist, a direct appeal from the High Court to the Supreme Court, thereby "leapfrogging" the Court of Appeal, may be allowed. To be warranted, the issue must be of such general public importance or be so vital to the interests of justice as to be considered exceptional, and/or in cases of urgency where any delay which would result from having two appeals, would be disproportionate in the circumstances of the case.
Once judgment has been obtained, the losing party, now referred to as the judgment debtor, should voluntarily pay any damages awarded under the judgment. If payment is not made, there are a number of enforcement procedures available to the successful party to enforce payment in the English courts. Examples include:
The appropriate procedure will depend on the nature and location of the debtor's assets. Freezing orders are also available to prevent the judgment debtor from dissipating its assets in an attempt to avoid payment of the damages awarded.
Where the judgment debtor has assets outside the jurisdiction, the ease with which the judgment can be enforced overseas will depend on any reciprocal arrangement in place between England and the jurisdiction in which enforcement is sought, and where there is none, the local law of the jurisdiction in which enforcement is sought.
England currently has the following reciprocal arrangements in place:
The time between the commencement of a claim and trial is very much dependent on how the intervening stages are conducted. However, for a case in the High Court to be ready for trial, it can take approximately a year-and-a-half from commencement. The timeline below provides a breakdown of the timing by reference to the different stages of a standard commercial case.
Steps to be taken
Before litigation is commenced, the parties should comply with any relevant Pre-Action Protocol.
Issue Claim Form and Particulars of Claim (to be served within four/six months of issue) together with any key documents.
Acknowledgement of Service
The Defendant fills in the Acknowledgement of Service form indicating whether it is their intention to admit or defend the claim.
Defence and Counterclaim
Unless the Defendant admits the claim, he must file a Defence and/or a Counterclaim together with any key documents.
Case management stage
The parties have to fill in a Listing Questionnaire which requests further details about each party's position. The information provided enables the parties to formulate a timetable going forward which, if not agreed, is decided by the Court at the Case Management Conference (the Order for directions).
Case Management Conference
The parties attend court to discuss how the claim should proceed and the timetable, which the parties can sometimes agree between themselves.
This is the process by which each party provides each other with the documents relevant to the litigation.
Exchange witness statements
The parties prepare and serve statements of their witnesses of fact, which will form the basis of their evidence at trial.
Exchange expert evidence
If appropriate, the parties instruct an expert and exchange their reports.
Preparation for trial and trial
Preparation for trial and Pre-trial review
In most cases, the Court will order a hearing to ensure that the trial timetable has been followed and the parties are ready for trial.
The final hearing of the matter before a High Court judge.
Judgment is given at a later date once the judge has had time to consider all the evidence. Costs will usually be awarded to the winning party.