The English legal system is based upon the common law and our
courts apply and follow both legislation and also precedents set in
previous cases. The Civil Procedure Rules (CPR) 1998 govern the
conduct of litigation in this jurisdiction. Please click on the
bookmarks below for more information.
For further information visit our litigation and dispute
resolution webpages or contact Nick
Arnold on 020 7814 6857 or email nick.arnold@bllaw.co.uk.
standard of proof
The English legal system is adversarial in nature. The claimant
makes a claim and seeks to prove it while the defendant seeks to
disprove it. The Court will then decide “on the balance of
probabilities” which party’s case is more likely than not to be
true. In the English criminal justice system, by way of contrast,
the standard of proof required is the considerably higher test of
“beyond reasonable doubt”.
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pre-action steps and letter of claim
Before issuing proceedings, parties and their representatives
are expected to engage in dialogue with a view to settling matters
without the requirement for litigation, or at least narrowing the
issues in dispute. This will involve an exchange of information and
documentation and, in some cases, settlement negotiations, even at
this early stage. A letter of claim before action sent by the
claimant to the defendant setting out the claimant's case is the
usual starting point. Failure to comply with a pre-action protocol
may lead to cost consequences for the offending party.
Alternative dispute resolution (ADR), such as
mediation or arbitration should also be considered at this stage as
an alternative to litigation. For further information on ADR,
please go to our BL Resolve web pages.
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issue and service of proceedings
Claims are issued in the High Court or the County Court.
Generally speaking, the High Court deals with disputes where the
value of the claim and amount in dispute is higher, where facts,
legal issues or procedures are particularly complex, and where the
importance of the outcome bears some significance to the public at
large.
Proceedings are commenced by issuing a claim form at the
relevant court. The claim form must be supported by particulars of
claim which set out the legal and factual details of the claim more
fully. A court issue fee is payable.
Within the jurisdiction, the claim form should be served on the
defendant within 4 months from the date of issue at court. For
service outside of the jurisdiction, the time allowed is up
to six months.
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defence
The defendant may file and serve an admission at this point. In
most cases, the defendant will wish to file a defence. Within this
jurisdiction the defence must be filed at court and served on the
claimant within 14 days of service of the claimant's particulars of
claim. However, if the defendant takes the step of acknowledging
service of the particulars of claim, the time for filing the
defence is extended to 28 days after the particulars of claim were
served. The parties may wish to agree to extend the time limit for
filing the defence by 28 days and they may do so.
Where the claimant's claim form and particulars of claim are
served outside of the jurisdiction, the time limits for filing and
service of the defence vary country to country.
Normally, if the defendant wishes to counterclaim against the
claimant, this is the stage where the defendant would do so.
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summary judgment
The court may award judgment to a party at this stage, thus
bringing a case to an early conclusion. It may do this against a
claimant or defendant on the whole of a claim or on a particular
issue if it considers that:
a) The claimant has no real prospect of succeeding on the claim
or issue
b) The defendant has no real prospect of successfully defending
the claim or issue or
c) There is no other reason why the case or issue should be
dealt with at trial
Both claimants and defendants may apply for summary judgment and
indeed the court itself may give summary judgment of its own
initiative.
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allocation
The court will allocate a case to a case management 'track'.
There are three tracks and allocation is almost entirely dependent
on the value of the case. Cases worth less than £5,000 are
allocated to the small claims track. Those worth between £5,000 and
£25,000 are allocated to the fast track. Cases worth more than
£25,000 are allocated to the multi-track. Commercial Court cases
are automatically allocated to the multi-track.
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disclosure and privilege
As part of the required exchange of information as proceedings
progress, each party must reveal to the other a list of documents
(including electronic data) which are, or have been, in their
control. Disclosure can involve anything from the exchange of a few
to several thousands of documents. Each party must disclose only
the documents on which they rely and documents which:
- adversely affect their own case
- adversely affect another party's case or
- support another party's case
The other party may then 'inspect' and copy those documents
except where:
- the document is no longer in the control of the party who
disclosed it;
- the party disclosing the document has a right or duty to
withhold its inspection; or
- a party considers it would be disproportionate to the
issues in the case to permit inspection of certain documents.
Sometimes, there may be dissatisfaction as to the documents
disclosed. In the first instance, this should be raised between the
parties. However, if unsatisfactory answers are given, an
application to the court may be made for specific disclosure of the
documents in question.
In certain circumstances, documents may be privileged. There are
various categories of privilege. Privileged documents must be
disclosed in the sense that they are listed in the party's
disclosure list, usually in one category so as to avoid giving away
their content. They are not then available for inspection by the
other side however.
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exchange of witness statements
Litigation in this jurisdiction does not permit the taking of
depositions, save in very limited circumstances. Lawyers here,
however, may prepare depositions for use in proceedings abroad.
The parties' respective witnesses compile witness statements,
verified by a statement of truth and setting out the facts from
their perspective. These are exchanged well before trial. Witnesses
may be called to give their evidence at trial and be questioned or
'cross-examined' on the contents.
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expert evidence
Where a case cannot be determined by the court without the input
of an expert in a particular field, expert evidence is likely to be
required. The parties often jointly instruct an expert to prepare a
report and give a view on the facts. This keeps costs to a minimum.
However, in some cases, parties instruct their own experts. Experts
are often required to attend court so that they may be questioned
further or cross-examined on their report.
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injunctions
Injunctions are court orders requiring a person to carry out,
or, more usually, refrain from carrying out particular actions.
They can be made on an interim or final basis.
Freezing injunctions, in particular, can be very useful to
parties who wish to freeze an opponent’s bank account(s) or prevent
infringements of intellectual property rights, for example. There
are, however, many other ways in which injunctions can be very
effective within proceedings.
A party who knowingly breaches an injunction is guilty of
contempt of court.
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offers to settle: Part 36 Offers
Under CPR Rule 36, there is a detailed regime for either party
to make an offer to settle a case for a particular sum. Some costs
protection may be afforded by making a Part 36 Offer. If a party
refuses an offer and subsequently fails to do better at trial, the
court may make substantial costs orders against that refusing
party. The Part 36 regime is clearly intended to focus parties'
minds on settling litigation.
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security for costs
Sometimes, it may be that there is doubt as to whether the
claimant could pay a costs order made against it. In certain
circumstances, within the court’s discretion and upon application,
an order of security for the defendant's costs may be made, which
may be satisfied by the claimant making a payment into to court or
providing an appropriate bond or guarantee. Security can be ordered
against an impecunious company or an overseas claimant (to whom
none of the various international convention exemptions apply).
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trial and costs
If the parties are unable to settle the case prior to trial, the
court will hear the case in full and pronounce judgment. The
parties' legal teams, made up of solicitors and barristers, the
parties themselves and witnesses will attend. The parties' legal
representatives will make submissions on points of law in support
of their case and witnesses (including experts) and the parties may
be called to give evidence and be cross-examined.
As a general rule, the successful party in the litigation, if
they have acted reasonably throughout, can expect the court to
order their costs to be paid by the other party. Sometimes costs
may be agreed by the parties but in default of this, the court will
decide the amount payable. Usually, the costs awarded by the court
to the successful party cover only proportion of the costs they
have incurred.
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appeal
A party wishing to appeal a judgment, the 'appellant', is almost
always required to apply for permission, to appeal to a higher
court. Permission to appeal will only be given where the court
considers that the appeal would have a real prospect of success or
if there is some other compelling reason why the appeal should be
heard.
The grounds for granting the appeal itself are limited. An
appeal court will grant an appeal where the decision of the lower
court was wrong or unjust because of a serious procedural or other
irregularity in the proceedings in the lower court.
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enforcement of judgments
Where it is necessary to enforce a judgment, due to another
party’s non-compliance, there are a variety of options.
A judgment may be enforced against goods. A High Court
Enforcement Officer, or Bailiff in the County Court, may seize
goods and auction them to pay debts and expenses. This is a
frequently used method of enforcement and often, the threat of sale
of goods, moves the debtor to pay expeditiously.
Insolvency proceedings against an individual (bankruptcy) and
against a company (winding-up) may also be brought by a judgment
creditor to satisfy the debt owed.
The court may make a charging order. This is frequently an order
against any interest in land belonging to the judgment debtor.
Ultimately, the interest in land may be sold to satisfy the
debt.
Garnishee proceedings, also known as third party debt
proceedings may be commenced and an order made. This allows a
judgment creditor to realise the amount owed to them where the
judgment debtor is owed a sum of money by a third party.
A judgment creditor may also seek an attachment of earnings
order to satisfy the debt owed to them. Where a judgment debtor
earns a salary, this method may be pursued. An amount of the
judgment debtor’s salary may be paid from his or her employer,
directly to the judgment creditor.
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