Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

A typical sequence is as follows:

  • pre-action correspondence between the parties;
  • issuing of a claim form by the claimant;
  • acknowledgement of service by the defendant;
  • service of particulars of claim by the claimant;
  • service of defence by the defendant;
  • allocation to a case management track by the Court;
  • service of a reply to defence by the claimant (an optional step);
  • hearing: a case management conference (only in large or complex claims);
  • disclosure of documents by the parties;
  • exchange of witness statements;
  • exchange of expert reports (if necessary);
  • hearing: pretrial review (only in large or complex claims);
  • listing for trial by the Court;
  • trial;
  • any post-trial matters (eg, costs hearings, if not settled);
  • appeal by the losing party (if permission granted);
  • enforcement (if necessary); and
  • hearing to determine the amount of costs to be awarded (if necessary).
Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes, parties can be added after a case commences either on the Court’s own initiative or by the parties’ application.

Consolidating proceedings

Can proceedings be consolidated or split?

Yes. The Court has wide case-management powers, which includes the consolidation or splitting of proceedings. If there is more than one lawsuit relating to substantively the same parties and subject matter, the Court can consolidate them on its own initiative or following an application by the parties.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

The Court will decide claims or allegations on a balance of probabilities, which is the civil burden of proof. The Court will determine which set of facts is more probable than the other, so it must be at least 51 per cent sure that one set is more probable than the other. Importantly, the Court does not infer a set of facts from a party’s allegations; the Court will decide the case based on the pleaded facts and evidence presented before it.

How does a court decide what judgments, remedies and orders it will issue?

The Court will order the relief sought by the claimant or applicant in a given case. It will rarely grant an order or declaratory relief if it was not first sought by the claimant or applicant. It is, therefore, important for claimants or applicants to plead in the alternative so that as many potential relief measures are covered as possible.

Evidence

How is witness, documentary and expert evidence dealt with?

The Court will give directions as to which evidence is to be adduced, the timing of the evidence and the experts needed to determine the case. Usually, the Court will give directions on expert evidence if it lacks the technical knowledge to rule on the case. Evidence in civil proceedings is covered in the following stages of litigation:

Disclosure

The parties will agree (or the Court will order) the dates in which evidence is to be collated and exchanged between the parties. Usually, the parties will provide a list of documents that they require and the source in which those documents may be found (eg, a claimant may provide a list of key words that the defendant will be required to search for through its computing systems). This stage is probably the most time-consuming and expensive in a lawsuit as it often involves sifting through large volumes of information and evidence to build a case.

Witness statement

The parties will agree (or the Court will order) the dates on which the parties will be required to exchange witness statements of fact. The Court can provide directions as to, for example, the issues on which it requires evidence, the nature of the evidence that it requires to determine those issues and the way in which the evidence is to be placed before the Court (eg, oral testimony versus written evidence). The statements must be accompanied by a statement of truth. At trial, parties’ counsel will attempt to undermine the credibility of the witness.

Expert report

The parties will agree (or the Court will order) the number of expert reports needed in the case. The Court will usually invite the parties to identify a single joint expert, although that is rare in highly complex commercial litigation. The expert will need to follow the instructions given to him or her by the relevant party. The expert has an overriding duty to the Court, so no matter which party instructs him or her, his or her primary duty is towards the Court.

Trial

The Court will hear live oral evidence and will also be taken through the documentary evidence throughout the duration of the trial. Oral evidence is usually given in open court (ie, accessible to the public) unless there is a good reason to hear the case in private (eg, when minors are involved). The witnesses and experts are cross-examined by the parties’ counsel who may be taken to give opinions on the evidence found during the disclosure stage.

How does the court deal with large volumes of commercial or technical evidence?

If the Court is minded that it needs technical expert to determine a case, it will direct the field in which the expert evidence is required and the issues that the expert evidence will address.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

Yes, a witness in Gibraltar can be compelled to give evidence in support of foreign proceedings. The foreign court will need to make a formal written request in a prescribed form. Once the request is made, an application will then follow, typically ex parte.

It is also possible for the Court to seek assistance from foreign courts. The length of time it takes to obtain assistance will invariably depend on the jurisdiction from which the assistance is required.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

The witness and documentary evidence is tested at trial by way of cross-examination. The parties’ counsel will cross-examine the witnesses and experts and take them through the documentary evidence to build their case. The Court will place greater weight on the documentary evidence as opposed to witnesses’ oral testimony. An expert can be asked (typically by the Court or by the party that is relying on that expert’s testimony) to provide his or her opinion on the effect that the evidence (eg, the scope of a written agreement) might have on a party’s case.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

Usually, a complex commercial case lasts between 12 and 18 months from the date when the claim form is served on the opposing side. Depending on the subject matter, a case can be expedited through a Part 8 civil procedure, as these proceedings are aimed at cases that do not involve a substantial dispute of fact (eg, declaratory relief by trustees on the manner in which a trust is to be administered). The Court will also typically expedite proceedings in the following cases:

  • preliminary issues: the Court will usually expedite the consideration of any preliminary issues as this does not usually involve the cross-examination of witnesses. A preliminary issue may involve a point of law or fact that a party must overcome for him or her to be able to continue with his or her case.;
  • injunctions: the Court may expedite trials if it considers that the requirements for an injunction (inter alia, that there is a serious issue to be tried) are not quite met; and
  • insolvency proceedings: the Court will consider how a delay in court proceedings may prejudice a party in relation to separate insolvency proceedings (eg, where the Court is asked to rule on a claim promptly so that the claimant may file a claim against a liquidated company before any distributions are made to the general body of creditors).
Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

A party may apply for the strike out of another party’s statement of case, in whole or in part: see question 27.

As an alternative, a party may apply for summary judgment under the CPR. The Court may give summary judgment against a claimant or defendant on the whole of a claim or on an isolated issue if it considers that:

  • the claimant has no real prospect of succeeding on the claim or issue; or
  • the defendant has no real prospect of successfully defending the claim or issue; and
  • there is no other compelling reason why the case or issue should be disposed of at trial.
Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

Third-party litigation funding is possible in Gibraltar, and it is an area that is gaining momentum in the jurisdiction. Litigation funding allows claimants to pursue meritorious claims, particularly when they have limited liquidity to instruct lawyers. This type of financial arrangement is popular in class actions where, for instance, a number of shareholders pursue a claim against large corporations. The funders become stakeholders in the proceedings, so their views must be taken into account as the litigation continues. Having litigation funding could persuade defiant prospective defendants to settle cases promptly.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

Technology has had little impact in the Gibraltar courts: legal proceedings are still very much paper-based. At present (and there is no indication that the position will change), there are no electronic filing methods before the courts, so all documents are filed on paper form. Parties can agree to exchange filings electronically (by email or electronic portal), but filings in court are still in paper form. Further, case materials cannot be accessed electronically; searches are conducted at the Court’s registry.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

Parallel proceedings could take the form of, for example, regulatory or criminal proceedings, or be in the form of substantive proceedings issued in a foreign jurisdiction. In the case of the latter, the Court could (provided that the rules on private international law allow it) grant an anti-suit injunction (refraining the foreign proceedings from continuing) or order a stay of the Gibraltar proceedings. A stay of proceedings is also possible when there are concurrent regulatory or criminal proceedings. It is a case management tool available to the Court. Depending on the nature of the case, there could be significant tactical advantages in staying civil proceedings until the conclusion of a criminal action: for instance, a claimant could rely on criminal convictions in support of a civil claim (the burden of proof in criminal proceedings is higher than in civil actions). In cases of private international law, refraining a party from continuing an action in a foreign country could bring significant advantages (eg, proceedings in the foreign state could take longer to determine, a higher level of damages could be awarded and the case could be determined by a jury as opposed to a judge).

A private person may instruct counsel to act as prosecuting counsel. Ultimately, the Attorney-General has overall responsibility for prosecutions in Gibraltar. Pursuant to article 59 of Gibraltar Constitution Order 2006, the Attorney-General has the power in any case in which he or she considers it desirable so to do to, inter alia, take over and continue with any criminal proceedings that may have been instituted by any other person or authority.