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Litigation: Overview

By James Dugdale


What is litigation?

Litigation refers to the process of settling a dispute in a court of law. The courts deal with disputes surrounding alleged breaches of criminal law, as well as of civil law. Where there has been a breach of criminal law, the accused will be subject to criminal prosecution by the state. Civil prosecution, however, is between individuals or organisations. This article will focus on litigation as a method of resolving civil law disputes, particularly pertaining to commercial matters. Examples of such cases include breaches of contract, patent infringements, and employment disputes.

Courts in England and Wales

In England and Wales, the court in which most large commercial disputes are resolved is the High Court of Justice. The High Court is itself divided into three divisions: Queen’s Bench Division, Chancery Division, and Family Division.

Within these divisions are a number of courts known as the Business and Property Courts. These are specialist courts which handle disputes relevant to their respective areas of law. The Commercial Court, for example, is a subdivision of the Queen’s Bench Division, and it specialises in disputes between business, particularly relating to trade, finance, and insurance. Other specialty courts within the Queen’s Bench Division include the Technology and Construction Court, and the Admiralty Court. There are also a number of Business and Property Courts within the Chancery Division, such as the Patents Court and the Intellectual Property and Enterprise Court.

The civil courts of England and Wales are governed by the Civil Procedure Rules (CPR). These rules were implemented in 1999 with “the overriding objective of enabling the court to deal with cases justly and at proportionate cost” (CPR, 1.1(1)). Prior to, and during, the process of litigation, the courts require all parties involved to consider methods of alternative dispute resolution (see our guide on alternative dispute resolution for more information).

What are the stage of a civil proceeding?

Before commencing proceedings

The ‘Practice Direction - Pre-Action Conduct and Protocols’ are the set of directives that the courts require all parties involved to follow before beginning litigation proceedings. As mentioned before, alternative dispute resolution must be considered, and there are specific steps that both the claimant (the party who believes that they have been wronged) and the defendant (the accused) must make before taking the dispute to court.

Before issuing a claim at court, the claimant must write to the defendant in order to inform them of the claim, as well as to describe the details of the claim. This should include what the claimant wants from the defendant, and why it is they believe they are entitled to the requested compensation. The defendant then has a responsibility to reply to the claim, and either accept or reject it. Reasons for their decision must be explained, and the specific parts of the claim that the defendant disputes should be identified.

If the claimant and defendant cannot reach an agreement, then proceedings can begin. Throughout proceedings, alternative forms of dispute resolution must continually be considered, as “litigation should be a last resort” (Pre-Action Conduct and Protocols, 8).

Preparing a case

Proceedings begin when a claimant submits a claim to the relevant court. The claimant must also provide the necessary documents which explain what it is they claim the defendant did wrong. The defendant must then acknowledge and respond to the claim. The defendant may also choose to bring a counterclaim against the claimant.

The court then issues what is called a directions questionnaire, which is used to collect information, evidence, and witnesses that the claimant and defendant intend to use in court. At this point, the court will usually set the date of the trial, which can be soon after the commencement of proceedings, but can also been in multiple years’ time for particularly complex cases.

Throughout proceedings, the court has the power to strike out (dismiss) a claim on a number of grounds. Such reasons may include the absence of a valid legal claim, or if the claim is obviously ill-founded (Practice Direction 3a, 1.4-1.9).

Both the claimant and the defendant must also declare certain aspects of their case to the opposing party. This may include a budget which estimates the costs of proceedings, as well as the evidence, witnesses, and experts which they plan to use in court. The extent of the information that each party must disclose, however, must be agreed upon beforehand. Documents which both parties agree do not have to be disclosed are called privileged documents.

Going to court

Court proceedings will commence on the previously set court date. They will be presided over by a judge, who listens to both cases, and controls the proceedings of the trial. The judge is also responsible for delivering a judgement on the case. In order for the claimant to win a civil proceeding, they must prove that their version of events was more likely to have occurred than not occurred. This is known as the balance of probabilities.

Hearings are usually open to the public, meaning that anyone can watch the proceedings. The claimant and the defendant will have their own respective barrister who will present their case to the court. Though uncommon, solicitors may advocate in the High Court if they have the necessary qualifications. These solicitors are called solicitor advocates. The claimant’s advocate usually presents their case first, followed by the defendant’s advocate. Throughout proceedings, witnesses and experts may be cross-examined, meaning that the advocate of the opposing party (of the side who called the witness or expert) can interrogate them.

After each advocate delivers their closing remarks, the judge will deliver a judgement. Judgements made in the High Court can be appealed, but only if permission is granted by the Court of Appeal, or by the High Court itself. However, appeals will only be granted if there is a “real prospect of success” or “there is some other compelling reason for the appeal to be heard” (CPR, 52.6(1)). Each year, only a small percentage of cases are successfully appealed.

Case studies

PCP Capital Partners LLP v Barclays Bank Plc [2020] – As part of a lawsuit in which Barclays has been accused of acting deceitfully when amassing investments following the 2008 financial crisis, the Commercial Court found that the bank had waived the privilege of a number of documents. The privileges were waived after Barclays had used information from the documents to support its case.

Times Travel (UK) Ltd v Pakistan Airlines Corporation [2019] – In May 2019, the Court of Appeal found that lawful pressure, applied in good faith, is not economic duress. This overruled a previous decision of the High Court, and found that the Pakistan Airlines Corporation had acted lawfully in its contract negotiations, and had not forced Times Travel into signing a contract under duress.

Canary Wharf v European Medicines Agency [2019] – In February 2019, the High Court ruled in favour of Canary Wharf, finding that European Medicines Agency’s office lease was not frustrated (unable to be fulfilled due to unforeseen events) by Brexit. This was a significant ruling as it created a degree of certainty around contractual obligations that may be impacted by Brexit.

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