An overview of litigation in England and Wales

Pre litigation considerations

Means

Enquiries must be undertaken in relation to:

  • solvency/corporate structure,
  • ability to pay/insurance;
  • ability to perform;
  • jurisdiction;
  • a cost/risk analysis is required.

Consideration given to security for costs.

Funding

Conditional Fee agreements (No-Win, No-Fee) are available allowing a % mark-up on base costs. Success fees and insurance premiums will no longer be recoverable against the losing party but will be taken from a successful Claimants damages. Disbursements are normally excluded from a CFA.

Damage Based Agreements are now legal in the UK. These allow a solicitor to agree not be paid if a case is lost but to take a percentage of damages recovered by way of a fee if successful. The maximum that can be recovered is 35% in Employment Tribunal cases or up to 50% in all other commercial cases.

Hourly rates. These vary widely. In large City of London firms a senior Partner could cost £500 + per hour plus Vat; in smaller firms £300 + Vat. In large city forms anticipate a “team approach”. In cities outside of London the rates are slightly lower. There are guidelines of rates broken down in to 4 levels of fee earner.

Settlement

Part 36 offers are a formal weapon available to all parties before and during legal proceedings and are intended to force settlement.

If such an offer is made and not beaten at trial (not a purely financial test) the party who made it can claim costs since the offer was rejected/expired on a penalty basis with penalty interest.

From April 2013 an extra sanction was introduced for Claimant Part 36 Offers. This is calculated as 10% of the costs in non-monetary claims or 10% of the first £500,000 of any award and 5% of the next £500,000 with a maximum uplift of £75,000.

Other settlement offers can be made an any time where a Part 36 type offer is not appropriate and considered by the court.

Alternative Dispute Resolution (“ADR”)

Mediation

Mediation is a term for a number of Alternative Dispute Resolution (ADR) schemes – formal or otherwise, court controlled or not.

It is incumbent upon the parties prior to commencing litigation and afterwards to consider whether or not it is an appropriate dispute to mediate.

Where a party fails to mediate, the court can exercise draconian powers, for example disallowing costs.

Mediations can take a variety of forms depending on the case. It is often informal with the aim of finding a practical and commercial solution rather than someone making o formal finding of fact. The parties prepare core documents for consideration either by the mediator only or for all to see. The mediator cannot force a compromise but if settlement is achieved it can be enforced through the courts.

Mediators may be sector specific experts/barristers/generally trained.

Arbitration

This is a formal procedure governed by the Arbitration Act 1986.

It applies if there is an arbitration clause in an agreement or if the parties agree to follow this procedure. The court may stay proceedings to allow arbitration.

The arbitrator will consider statements and evidence with the ability to probe further and will then come to a finding which will be binding – save in exceptional circumstances.

The award can be enforced through the courts.

Adjudication

This is a procedure applying primarily to construction contracts governed by the Housing Grants, Construction and Regeneration Act 1986 to address supply chain issues and disputes within a working contract. It is formal and ends in a determination.

Again a decision can be enforced through the courts.

Formal pre action steps

A Claimant is obliged to send a letter of claim with sufficient information to substantiate a claim, set out the remedy sought and quantify losses as far as possible.

A recipient must reply within a reasonable period giving the identity of insurers if appropriate and a detailed reply with appropriate paperwork.

In any letter admitting liability, where there is a possibility of arguing contributory negligence this should be pointed out.

There is a presumption a potential Defendant is bound by any admission.

A pre action letter must invite ADR.

Issuing a claim/picking the court

This must be a last resort - litigation is openly discouraged.

There is a court fee payable on starting a claim which varies depending on the value/nature of the claim. Currently these are: £5000 - £15,000 = £245, £100,000-150,000 = £ 685, £300,000+ = £1670.

There are two branches of judiciary – The High Court and the County Courts.

The High Court is based in Central London and has some regional registries in commercial centres.

The High Court has three main Divisions (1) Queens bench (2) Chancery and (3) Family. The first deals with most contract, tort and administrative claims; the second business matters including trusts, patents (Intellectual property Enterprise Court) and the companies’ court and the third family related matters.

The High Court houses the Court of Appeal.

County Courts appear in most cities. They deal with all matters not of a value/nature that they are heard in the High Court.

The final civil court is the European Court of Justice. This is based in Luxembourg. It is the venue to determine issues of public importance or issues concerning the implementation of UK law in accordance with European law//directives. It is primarily a referral centre for other courts.

Procedural steps

The Claim Form and Particulars of Claim set out the claim in detail.

The general rule is that a Defence is due 14 days after service of the Particulars of Claim or. It is possible for the parties to extend the time for serving and filing a Defence by up to 28 days.

The Defence is a critical document. Whilst amendments are possible and may be necessary there may be costs consequences.

A counter claim or related claim (a claim by an existing party to proceedings against a new non-party or another existing party) should be commenced at the same time a Defence is filed. While this is a separate action it will generally be dealt with at the same time as the main action.

All pleadings (and witness statements) must contain a statement of truth. This is confirmation by the signatory personally that the contents of the document are true, even though their legal advisors have prepared it. If the court finds that the document is not true and a party has intentionally misled it, they may personally be held liable for proceedings of contempt of court.

Directions/Case Management hearings

According to the nature of the claim (financial value, complexity, time estimate for trial) following a defence being served it will be allocated to a procedural track/process.

In all cases, the importance is to deal with matters in accordance with the overriding objective – dealing with matters justly and proportionately.

Small Claim (claims worth less than £10,000)

Generally such matters will be listed for a disposal hearing with standard/fixed directions with a maximum time period of 2 hours. Numerous cases will be listed at the same time so it may not be heard on time or even that day.

Witness statements will still need to be prepared and bundles put together.

In the event a Claimant is successful they will be entitled to recover the amount they claim by way of damages, interest (at the court’s discretion), fixed court and costs and possibly something for expenses.

Non-standard costs can be awarded for unreasonable conduct

A party need not attend a small claim hearing.

Fast Track (£10,000 - £25,000)

The court will forward all parties an allocation document to complete and return with basic details; value, the number of lay witnesses, need for expert witnesses, trial time estimate. Following receipt standard directions will normally be given.

Directions will be issued to get a case to trial in 30 weeks of commencement.

Multi Track (25,000+)

A case management hearing will be listed (by telephone) or standard directions will be given.

Solicitors need to file costs budgets within 28 days of filing a Defence. These should where possible be agreed. There is only a small amount of flexibility on exceeding the budgets that are fixed.

Disclosure

This is the production by list of all documents which are or have been in a parties possession, custody or power relevant to the matter in dispute. “Documents” are widely defined.

In multi-track matters the court can decide what is required and if necessary limit disclosure. The parties will need to serve and file a report describing briefly what documents exist that may be relevant to the matters in issue, where they are located and an estimate of the costs involved in the disclosure exercise. They should also stipulate what direction they require in relation to disclosure. Electronic disclosure regimes apply. Parties should try and agree proposals to keep costs to a minimum.

Evidence

The burden of proof in civil claims is the balance of probability i.e. the court finds 50.1% in favour of one party over another. In criminal cases the burden of proof is considerably higher i.e., beyond all reasonable doubt.

He who alleges must prove. A party asserting a position must prove that position on the balance of probability.

Witnesses

Witness statements of fact will be prepared by each party and mutually exchanged.

At trial, a witness will not orally give evidence along the lines of their statement. Their statement will serve as their evidence.

Generally speaking, witnesses of fact must attend court in order to be cross examined as to their witness statements. If that is not possible however there are limited exceptions to the rule.

Expert Evidence

Expert evidence should be jointly agreed wherever possible with the parties sharing the cost.

Trial

If possible a decision in relation to liability, damages, costs and interest will be given on the day. Judgments will generally be payable within 14 days.

In appropriate cases a split trial can be agreed and held. This is common in the Patents Court.

In longer/complicated multi track cases there may be a reserved judgment. Generally costs will be assessed later but subject to strict rules on costs budgeting.

Case Management/Costs

The courts are very active in case/costs management and adhering to costs estimates and timetables. Failure to adhere to directions can be critical, late amendments may not be allowed, costs sanctions can be applied for minor infringements and wasted costs orders can be made against solicitors.

The Legal team

There is a traditional distinction between solicitors and barristers.

Solicitors tend to deal with the day to day running of a case. Barristers are brought in to advise on specialist areas of law/evidence and then to undertake advocacy.

Please note that neither these notes nor anything said during the presentation should be relied upon as legal advice. Neither these notes nor the presentation constitute advice on the interpretation and application of the law to particular circumstances or matters.

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