Key features of English civil litigation
A key feature of English civil litigation is that it follows the principle of 'open justice'. This means that cases are almost always heard in open court and anyone is able to attend. Litigants who have concerns about confidentiality should be mindful of this when embarking on litigation. Even before the case is tried in open court, certain key documents are filed at court and members of the public and/or press are able to access them. These include documents that will contain a significant level of detail about the claim, some of which may be confidential or otherwise sensitive. There may also be interim court hearings before trial which will also be open to the public.
Litigation can be unpredictable, and the costs of it therefore hard to estimate accurately at the outset. Those costs can often also be very significant. An important feature of English litigation is that the unsuccessful party will generally be ordered to pay a significant proportion of the successful party's costs. Therefore, the unsuccessful party will generally have to pay not only its own costs of the litigation, but almost certainly a significant proportion of its opponent's costs as well, in addition to any sum that the court orders by way of substantive compensation for the claimant's losses.
There are several arrangements which help parties meet the cost of litigation. These include, but are not limited to:
- conditional fee agreements under which the litigant pays no fee or a reduced fee if the case is unsuccessful, but in general a higher than normal fee if the case is successful;
- litigation funding, where a third party agrees to pay some or all of the costs of the litigation in return for a share of the proceeds if the claim succeeds; and
- 'after the event insurance' which is arranged after the dispute has arisen and will generally cover both the insured's own costs of litigation and any costs of the insured's opponent that the insured is ordered to pay.
Although available, such arrangements are not commonly used in respect of significant commercial litigation in the English courts.
The English courts actively encourage litigants to make serious attempts to settle disputes both before formal court proceeding are issued, and, once proceedings have been issued, before trial. There are no hard and fast rules as to the timing of, or format for, settlement discussions: they can occur at any stage in the litigation process, from the earliest pre-action correspondence, right up to the day of the trial (and in some cases even after trial has ended but before the court has given its judgment), and may be very informal (a phone call between the parties, or between the parties' lawyers) or more formal, for example, a structured mediation where a specialist negotiator will seek to identify common ground between the parties and encourage a settlement.
When, and how, to make any settlement offer or approach is an important tactical consideration throughout the life of a case, particularly because whether and how parties engage in attempts to settle a dispute can have significant costs consequences following trial. In general, the courts will be quick to apply costs sanctions against parties who have not reasonably engaged in settlement discussions or failed to accept a reasonable offer.
There are situations where parties wish to avoid litigation through the courts because, for example, they do not want to incur the costs of court litigation or they do not want to air the dispute in public. There are several forms of 'alternative dispute resolution' (ADR). Some are designed to facilitate settlement, such as mediation (discussed above) or 'early neutral evaluation', a process where a neutral third party (often someone with considerable expertise such as a retired judge) will provide an early non-binding view on the merits of the case. Other forms of ADR are designed to produce a binding decision, such as arbitration, where an independent arbitrator hears and decides the case in a similar manner to a judge but, critically, during a process which is private. These processes are all selected through agreement of the parties and often contracts will require the parties to use one of these processes in the event of a dispute either instead of, or before, court proceedings.
A party's litigation legal team is likely to be made up of both solicitors, like Travers Smith, and barristers. Both come under the umbrella term of 'lawyers' but have different expertise and play different roles in the litigation process. Solicitors work more closely with their client, taking instructions and advising on a day-to-day basis. They are also generally more closely involved in the early stages of a case before proceedings are issued, particularly with regard to initial fact-finding and evidence-gathering. Solicitors are also more heavily involved in the legwork of each stage of the litigation process, for example, preparing disclosure, and obtaining statements and reports from witnesses and experts (as to which see further below), albeit that barristers are also often involved in that process. Barristers are more court-focussed. In particular, they will present oral arguments to the court during hearings, prepare the parties' formal statements of case (or "pleadings") which are lodged at court, and draft any other written submissions to the court such as skeleton arguments prior to hearings. Barristers are often referred to as 'Counsel'.
Return to our guide to commercial litigation in the High Courts of England and Wales