BASIS OF LAW
English civil law comprises essentially legislation by Parliament and decisions by the courts. There is no civil code. English courts may not override Acts of Parliament and are usually required to follow decisions on the same legal issue by a court of equivalent or higher status.
Legislation and decisions of the courts are subject also to legislation adopted by the European Council and decisions of the European Court of Justice.
In civil matters, jurisdiction is divided between the High Court and the county courts according to the size and complexity of the claim. This note is principally concerned with procedure in the High Court.
The High Court is divided into three divisions: Chancery, Queens Bench and Family (family proceedings are not considered in this note).
The Chancery Division deals with companies generally and such specialist matters as wills, trusts, insolvency, tax, copyright, trade marks and patents (the latter in a separate court called the Patents Court).
The Queen's Bench Division or "QBD" deals with all other civil matters, for example personal injury cases, industrial accidents, defamation cases, negligence claims, and other cases which are required to be heard in the High Court, such as applications for a "judicial review" of decisions by governmental bodies. The issue of the correct division in which to bring a claim is determined according to criteria laid down in the Civil Procedure Rules 1998 (see below under "Rules of procedure").
There is a section of the QBD known as the Commercial Court, comprising Queens Bench Judges who are particularly knowledgeable on commercial matters - in broad terms, shipping, insurance, commodities, banking and other specialised financial issues.
Another section of the QBD, named the Technology and Construction Court, deals with disputes involving information technology, engineering and construction.
Normally, cases involving less than £50,000 will be heard in a county court, and cases involving more than £50,000 will be heard in the High Court.
A further distinction is made between "small claims" of up to £5,000, in which a party only has the risk of paying very limited costs of a successful opponent; "fast track" cases between £5,000 and £25,000 which follow a strict timetable and in which fixed costs on a sliding scale may be awarded; and "multitrack" cases which will involve a higher level of judicial intervention. Virtually all High Court cases are multi-track.
In the QBD and Chancery Divisions, matters which arise in the course of an action are dealt with by "Masters", who are junior to Judges. Trials and other important matters such as applications for injunctions are heard only by Judges, who also hear appeals from the decisions of masters. In the Commercial Court there are no masters, and all matters, including interim or pre-trial issues, are heard by a Commercial Court Judge. This is one of the advantages of the procedure in that Court.
In civil cases, a Judge usually hears a case on his own. There is no right to trial by jury, with the exception of fraud (where it is hardly ever exercised) and most defamation cases (where it is normally exercised).
An appeal from a decision of a Judge is heard by the Court of Appeal, which will comprise either two or three more senior Judges, known as Lords Justices. On issues of public importance, there is a further and final stage of appeal to the Supreme Court. In that court, appeals are usually heard by five or, very occasionally seven, Supreme Court Justices.
The legal profession is divided between solicitors and barristers. In a typical civil action, the solicitors will investigate the matter; collect together and exchange with the other side relevant documents; obtain statements of evidence from witnesses; consult experts; advise on the relevant procedure, law and tactics, correspond with the solicitors for the other party, select a barrister when necessary, attend interim hearings (with or without a barrister), and generally maintain contact with the client. Solicitors normally practise in partnership. The partners will have working for them a number of assistant solicitors and trainee solicitors (graduates who are completing their training). The division of the work amongst those involved will depend on the importance and size of the case.
Barristers, often referred to as "counsel", are specialist advocates who have the automatic right to appear in all levels of civil court. They also draft statements of case (commonly known as "pleadings" – see below); give opinions on particular areas of the law in which they have particular experience, and prepare "skeleton arguments" (see below) for hearings. Barristers do not generally deal with clients direct. Senior barristers may be appointed as Queen's Counsel ("silks"). All other barristers are known as juniors. Barristers are self-employed and practise with other barristers in sets of "chambers".
Solicitors at trials also appear as advocates in the higher courts, provided they have been authorised to do so by the Law Society. Authorisation is granted to those solicitors able to demonstrate the appropriate advocacy experience and expertise.
Barristers and solicitors are eligible, after 10 years in practice, for appointment as High Court Judges. Most appointments, however, are of barristers.
RULES OF PROCEDURE AND THE OVERRIDING OBJECTIVE
The procedure of the High Court, the Court of Appeal and the county courts is laid down in the Civil Procedure Rules 1998 (the "CPR"). The CPR are subdivided into Parts, dealing with separate stages of a civil action, and are supported by detailed Practice Directions.
The CPR start by expressing the "overriding objective" of the Rules, which is "to enable the court to deal with cases justly". The court has to give effect to this overriding objective whenever it is exercising its discretion or interpreting the meaning of any rule. Parties are required to help the court to achieve this objective. Part 1 of the CPR states that "dealing with a case justly" includes, so far as practicable:
- ensuring that the parties are on an "equal footing"
- saving expense
- dealing with the case in ways which are proportionate:
- to the amount of money involved
- to the importance of the case
- to the complexity of the issues and
- to the financial position of each party.
- ensuring that it is dealt with expeditiously and fairly and
- allotting to it an appropriate share of the court's resources.
There are a number of provisions in the CPR which govern the way in which the parties should conduct themselves prior to the issue of proceedings. These provisions are designed to encourage parties to act reasonably in exchanging information and documents at an early stage and generally to try to settle their dispute without recourse to litigation. Sanctions may be imposed against litigants who fail to comply with these requirements. In addition there are a number of "pre-action protocols", setting out the procedure which parties are expected to follow in certain categories of case, for example, clinical negligence and professional negligence. These protocols are designed to ensure that litigation is a last resort.
The CPR oblige the court to engage in active case management. This includes:
- identifying the issues at an early stage
- encouraging the parties to use alternative dispute resolution (such as mediation)
- helping the parties to settle their dispute
- fixing timetables and
- considering whether the likely benefits of taking a particular step will justify the cost.
Early in the life of a multi-track case, there will be a case management conference ("CMC") with the master or Judge, at which these issues will be discussed. A representative of the client may be required to attend the conference, who must be personally involved in the conduct of the case, with the authority and information to deal with any matter reasonably likely to arise at the CMC.
At the CMC, the solicitors will be expected to have available the details of:
- the witnesses who will be called on factual issues
- the evidence that may be required on technical issues, eg 'expert' evidence
- the documentation that will be material to the dispute and
- the costs that have been incurred to date and are estimated through to the conclusion of the proceedings.
The court has a positive obligation to help the parties settle their dispute, rather than litigate it, where possible. Where settlement is not possible, the court will take positive steps to ensure either that everything necessary is done to prepare the case so that it is ready to start at the trial date. The court will fix that date (or at least a "trial window"), usually after the CMC. The whole emphasis is on disposing of the matter quickly and efficiently. This approach means that much work and expense will be required during the early stages of a case. For example, in preparation for the CMC, the parties will be required to file copies of all statements of case and other documents with the court. To assist the court, the claimant will also be required to prepare and file a summary of the issues in the case in not more than 500 words, and a skeleton argument, giving a concise statement of its case on the points in issue at the hearing.
In general the parties will have to adhere to the timetable laid down by the court. Some time limits may be extended by agreement between the parties. In the case of serious noncompliance with a time limit, the court may order that the claimant's action should be dismissed or that judgment should be given against the defendant.
An action is started by the issue of a "claim form". This is a formal document which must:
- contain a concise statement of the nature of the claim
- specify the remedy which the claimant seeks and
- in a money claim, contain a statement of the value of the claim.
The claimant prepares the document, takes it to the court and pays a fee on a scale from £35 to £1,670 according to the amount in issue and type of claim. The claimant may ask the court to serve the claim form on the defendant, or may arrange service himself. In either case a copy of the claim form is kept by the court and is available for public inspection. In certain cases, the court may be prepared, on the application of a party, to limit public access to the claim form (and indeed statements of case).
If the claimant arranges service himself, he must do so within four months of the date of issue (or six months if it is to be served out of the jurisdiction), after which time validity of the claim form will lapse. A claim form may be served on the defendant within the jurisdiction (that is, in the United Kingdom):
- by leaving it with him personally
- by delivering it to a solicitor who has instructions to accept service on behalf of the defendant
- by sending it to him by first class post (or other service which ensures next day delivery)
- by leaving it at his residence or business address
- by means of a document exchange or
- by fax or other electronic means, eg e-mail.
If the defendant is a company or limited liability partnership, service can be effected by delivering or posting the claim form to the company's principal office or to any of its places of business within the jurisdiction which have a real connection with the claim, or to a solicitor on its behalf.
A claim form may, in certain circumstances, be issued for service on a defendant outside the jurisdiction. Under the EU Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the general rule is that defendants within the European Union must be sued in the country of their domicile (as defined) unless one of the specified exceptions applies. These exceptions include, for example, the right to pursue a claim for breach of contract in the place where the contractual obligation was to be performed.
If the claim is not against an EU defendant or the claim itself falls outside Regulation (such as claims relating to insolvency or wills), permission may be obtained from the court in certain circumstances to serve a claim form on a defendant outside the jurisdiction. For example, permission will usually be given if the proceedings relate to a contract made within the jurisdiction, or to a tort committed within the jurisdiction. The case must fall within the circumstances specified in the relevant CPR rule. It is not sufficient, for example, to show only that the defendant has business interests within the jurisdiction.
STATEMENTS OF CASE
The documents in which the parties state their position are referred to as "statements of case". One of these is the "particulars of claim", which must contain a concise statement of the facts on which the claimant relies. If, as is usual, the claimant also seeks interest and costs, the particulars must state the basis of those claims and give a calculation.
The particulars must be contained in or served with the claim form, or may be served separately within 14 days afterwards (but in any event no later than the latest possible time for serving the claim form). They must also be filed with the court.
Within 14 days after service of the particulars of claim, the defendant must file with the court (and serve on the other side) a "defence". In his defence the defendant must say which allegations he denies, which he admits and which he is unable to admit or deny but which he wishes the claimant to prove. Most importantly, where the defendant denies an allegation, he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the claimant he must state his own version.
The defendant may if he wishes make a counterclaim against the claimant or join a third party to the main action in order to claim, for example, a contribution or indemnity from the claimant. These claims are referred to as "additional claims". If the defendant makes a counterclaim, he must pay a fee as if he were making a claim in a separate action. Again, this will vary, according to the size of the claim, from £35 to £1,670.
STATEMENTS OF TRUTH
The CPR require that certain documents, including all statements of case, are verified by a "statement of truth". This requirement underlines the spirit of the CPR that the parties should be actively involved in the litigation and should take care to ensure that factual assertions are correct before they are put forward. Normally, the statement of truth will be signed by the party, not by a solicitor on his behalf.
ACKNOWLEDGMENT OF SERVICE
If the defendant is unable to file a defence within 14 days he may file an "acknowledgment of service". He will then have until 28 days after service of the particulars of claim in which to file a defence.
The defendant may also file an acknowledgment of service instead of a defence if he wishes to dispute the court's jurisdiction. This may be appropriate particularly in the case of a defendant served outside the court's jurisdiction.
INTERIM INJUNCTIONS AND OTHER REMEDIES
If a claimant has a strong case, and it can be shown that he is likely to suffer irreparable damage unless an immediate order is made, the court will grant interim relief, ie an immediate order which will remain in force until the trial takes place or until a further order is made.
One order of this kind, frequently sought in commercial cases, is the "freezing injunction" which restrains a defendant from disposing of his assets in order to avoid paying a judgment given against him later at the trial. Similarly a "search order" may be granted to enable a claimant (eg the copyright owner) to find infringing goods.
The hearing can often take place within a few days. In appropriate cases of extreme urgency the application can be made without notice to the other side and an order obtained immediately, even by telephone. In such cases the other side may subsequently come before the court to challenge the order.
The evidence for freezing injunctions and search orders must be given in an affidavit sworn on behalf of the party concerned and must set out not just the facts on which the applicant relies but also all material facts of which the court should be made aware, even if they are adverse to its own case. This is because the defendant will not be present then to make such points himself.
To obtain any interim injunction the applicant must also give an "undertaking" to pay any damages which the respondent suffers, which the court considers the applicant should pay if the order is subsequently deemed not to have been justified.
SECURITY FOR COSTS
In certain cases, for example, where the claimant is resident abroad (and is not a national of an EU country) or where the claimant is acting as a nominal claimant, the defendant may seek an order requiring the claimant to provide "security" for the costs which the defendant will incur in defending the action, and which the claimant will have to pay if the claim fails. This can be a significant deterrent to a claimant, although the courts have gradually limited the circumstances in which an order for security for costs will be made. It is usual for the defendant to seek security at an early stage, and the action may be stayed until the security is given.
The amount of the security may be agreed by the parties. If it is not agreed, it will be determined by the court. The security is given by paying the appropriate amount into a fund at the court or by providing a bond or by arranging a deposit at a bank in the joint names of the parties' solicitors.
A claimant may not require a defendant to give security for the claimant's costs unless the defendant has made a counterclaim, which puts him in the position of a claimant for the purpose of that claim.
If the claimant considers that the defendant has no real prospect of successfully defending the claim, he may, immediately after a defence or an acknowledgment of service has been filed, make an application under CPR Part 24 for "summary judgment" in his favour. Equally the defendant may apply for summary judgment if he considers that the claim has no real prospect of success. This procedure avoids the additional work, expense and delay involved in proceeding to a full trial. Applications for summary judgment are, for example, made frequently on simple debt claims.
The respondent to the application must be given at least 14 days' notice of the hearing. If the respondent wishes to rely on written evidence, he must file and serve it at least seven days before the hearing, and written evidence in reply must be filed and served at least three days before the hearing. The respondent will very frequently serve such evidence in an attempt to show that there are serious disputes over the facts and the relevant law, and that the action should be allowed to proceed in the normal way. If the claimant applies before a defence has been filed, it is not appropriate for the defendant to serve a defence as such.
On the hearing of the application, the master may give judgment for the applicant or dismiss the application and give further directions about the management of the case.
DISCLOSURE OF DOCUMENTS
If there is no summary judgment, it is the obligation of each party, following the exchange of statements of case, to prepare and serve on the other party a list disclosing documents relevant to the dispute which are or have been in his control. A party giving "standard disclosure" must disclose:
- all documents on which he relies, and
all documents which:
- adversely affect his own case
- adversely affect another party's case or
- support another party's case.
A party is not required to give more than standard disclosure unless the court orders otherwise.
The other party is entitled to "inspect" and obtain copies of all the disclosed documents still held by the party serving the list, except for documents which a party may legitimately withhold from inspection, eg because they are privileged. The list must indicate what has happened to documents which are no longer in the control of the party preparing the list.
Disclosure is confined to "documents", but for this purpose a document means anything in which information of any description is recorded. In addition to correspondence and memoranda it therefore includes computer records, emails, voice-mail, video-recordings, sound-recordings, photographs and drawings.
Disclosure is a vital stage of the proceedings. Many cases terminate in some form of settlement following disclosure, when the weaknesses of one party's position become apparent from his documents.
It is essential that all possibly relevant documents and electronic data are preserved by a party as soon as it knows that litigation is contemplated.
Certain documents that are otherwise disclosable may properly be withheld from the other party on the ground of "privilege". Whether or not a document is privileged can be a matter of argument between the parties. It is often necessary for lawyers to give careful consideration to the issue. Two types of privilege are relevant:
- "legal advice privilege", which arises in respect of confidential communications between a client and his lawyers whether or not they relate to litigation
- "litigation privilege", which arises in addition in respect of confidential communications with certain third persons if litigation was in existence or contemplated or reasonably in prospect at the time they were generated and they relate to that litigation.
The following documents will in general fall within legal advice privilege:
- documents containing legal advice to the client
- communications between the client and his lawyers made for the purpose of obtaining such advice
- file notes and drafts made by the client's lawyers, and their instructions and briefs to counsel, and counsel's opinions and notes.
The following documents will in general fall within litigation privilege, in addition to any documents in the categories above when they are generated in connection with litigation:
- communications with a third person such as a witness in connection with the litigation
- witness statements prepared in connection with the litigation, unless and until disclosed to the other side.
Correspondence with experts is not privilege but the court will only allow inquiry about it in very limited circumstances.
Communications both internal and external with in-house lawyers at a company client will normally in all these cases be privileged, unless they relate to business matters outside the relevant legal context, or to administrative matters, and so are not essentially concerned with legal advice.
It is necessary to consider in each situation who constitutes "the client". Recent court decisions have made clear that only those persons within a company who by virtue of their role need to be involved in the consideration of legal advice should be included in the client team requesting and receiving the advice.
The following documents will not be privileged:
board minutes, internal reports and internal notes regarding the litigation prepared by the party for information purposes, unless:
- reporting when strictly necessary to others within the party's organisation on advice received from lawyers, or
- seeking information requested by lawyers for the purposes of the litigation
- notes to the published accounts concerning the litigation and any provision for the proceedings in the accounts (whether or not privilege ever existed, it will have been waived by inclusion in the published accounts), and related correspondence with accountants;
- written communications between a party and outsiders (such as the party's parent company or subsidiary, regulatory bodies, other authorities such as the police, insurers, and professional advisers other than the party's own lawyers), and notes recording such communications.
Sometimes a party may claim privilege for part only of a document, or only part of the document may be relevant to the issues in the case. In such a case, the privileged or irrelevant part of the document may usually be covered over (redacted) when the documents that have been disclosed are inspected by the other side.
WITNESS STATEMENTS AND EXPERTS' REPORTS
There is, generally, no pre-trial oral discovery by deposition in which the lawyers for each party question witnesses as to the evidence they will give. Instead, the parties exchange written "witness statements". The process is subject to the overall control of the court, which may give directions as to:
- the issues on which it requires evidence
- the nature of the evidence which it requires and
- the way in which the evidence is to be placed before the court.
A witness statement should set out the facts to which the witness will testify orally at the trial. It must be certified to be true by the witness. At the trial the witness may with the permission of the court amplify his witness statement, and give evidence in relation to new matters which have arisen.
In relation to expert witnesses there is a positive duty on all parties to restrict the evidence to that which is reasonably required to resolve the proceedings, and every expert has a duty to help the court, which overrides any obligation he owes to the client.
Generally the evidence of an expert will be given in a written report. For the purpose of clarifying a report, an opposing party may, once only and within 28 days, put written questions to the expert about his report.
No party may call an expert without the permission of the court (usually given at the CMC), which may also limit the amount which may be recovered from any other party by way of fees and expenses of the expert. As a further means of limiting expense, the court may direct that evidence is to be given by a single joint expert, to be chosen by the parties or by the court if the parties cannot agree, and the parties will be liable for that expert's fees. Alternatively the court may appoint an assessor to report to the court.
An expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written; and the instructions are not privileged from disclosure, though the court will not order disclosure of a specific document or permit questioning at the trial unless there are reasonable grounds to consider that the statement of instructions is inaccurate or incomplete.
Throughout the dispute, the parties will be encouraged to try to settle their action out of court. The settlement of actions is encouraged by the mechanism providing for a formal offer to settle, whether by the claimant or by the defendant, under Part 36. The amount and timing of an offer to settle will have very important costs consequences.
By way of example, if a claimant makes a claim for damages of £5 million for breach of contract and the defendant makes a "Part 36" offer to pay that sum, this will be the end of the action, subject to payment in addition of the claimant's legal costs on the standard basis.
If the defendant considers that he is likely to be held liable, but that the damages which may be awarded to the claimant amount to only £4 million, the defendant may make an offer to pay that sum. The claimant generally has 21 days within which to accept the offer. If he accepts, he is also entitled to receive the legal costs which he has incurred up to the time of acceptance.
If the claimant does not accept the offer, the action proceeds in the normal way. Then, if at the end of the trial the Judge (who must not be told about the offer until he has decided the case) awards to the claimant damages of £4 million or less, the claimant will still receive that amount plus his costs up to the end of the 21 day period, but he can expect to pay both his own costs and the defendant's costs after that time.
The rationale for such a result is that, since the Judge awarded no more than the defendant had previously offered, all the costs incurred afterwards were unnecessary. These later costs, especially the costs of the trial, can be substantial, and so from the point of view of the claimant the existence of a payment into court is a powerful inducement to settle.
If at the trial the Judge awards more than £4 million the payment into court is not generally taken into account under Part 36, because it is clear that the payment was not sufficient, and the normal rule on costs will be applied.
From the point of view of the defendant, the payment into court therefore needs to be sufficiently high to create a substantial risk for the claimant that the Judge will not award more.
In a corresponding fashion the claimant may make a "Part 36 offer" to settle for less than the total of his claim. In this case the defendant generally has 21 days within which to accept, and failing acceptance the defendant runs the risk (if the claimant wins what he has offered or more) of having to pay interest on the damages at a rate which is substantially higher than would otherwise be the case and also of having to pay costs on the indemnity basis, together with interest on those costs at a high rate.
PREPARATION FOR TRIAL
Not less than eight weeks before the date fixed for trial the parties must file a completed "listing questionnaire". If the court decides to hold a "pre-trial review", it will be conducted by the Judge who is to preside at the trial. The object is to determine directions for the conduct of the trial, including:
- the evidence to be given, especially expert evidence
- a timetable for the trial, which may specify the time allowed for the presentation of particular issues and
- the documents to be included in the "trial bundle".
The parties' solicitors should seek to agree directions between themselves, but the court has an overriding power to make an order in different terms if appropriate.
In the time before the hearing, the solicitors and barristers will be making the final preparations in accordance with those directions, negotiating for a possible settlement, making arrangements for the attendance of witnesses, researching legal points, and preparing the skeleton argument. For large trials this will be a major document identifying all the issues which are to be argued, all the propositions of law to be advanced and all the legal authorities (eg earlier court rulings or statutory provisions) to be cited. The trial bundle will be prepared and lodged at the court shortly before the hearing.
The style of the trial is predominantly oral, although "skeleton arguments" (outlines of the case) and lists of issues are increasingly used. Before the start of the trial, the Judge will generally have read the statements of case, witness statements, experts' reports and skeleton arguments lodged with the court. The Judge does not make his own investigations as such.
At the opening of the trial, the claimant's advocate may describe to the Judge the nature of the dispute and take him through the particulars of claim, the defence and the trial bundle. The defendant's advocate will usually then be invited to make a short statement.
The claimant's advocate will then call the claimant's first witness and examine him "in chief". Normally, the witness statement of each witness will be taken as his evidence in chief for this purpose, so this examination may be brief. The claimant's advocate may, without leading the witness, ask him questions designed to provide an introduction to matters covered in the witness statement or to obtain his evidence in chief on any matters not covered in the witness statement. The defendant's advocate may invite the court to require that the witness be taken through all his evidence in this way if for some reason the witness statement is inadequate.
The witness is then "cross-examined" by the defendant's advocate. His questions will be "leading" and will challenge the witness. They will be designed to show that the witness's written statement or oral evidence is unreliable, even untruthful, perhaps by showing that his recollection is at fault or that he did not have close knowledge of the facts or that his evidence is contradicted by a contemporaneous document.
The claimant's advocate may then "reexamine" the witness to deal with any new points arising from the crossexamination. The other witnesses for the claimant all follow and there is the same sequence of questioning. The Judge will frequently interject with his own questions.
When the last of the claimant's witnesses has been examined, that is the completion of the claimant's case. It is then the turn of the defendant's advocate. He will often make a general statement of his client's position and then call each of the defendant's witnesses, who will be examined in the same way as the claimant's witnesses.
The defendant's advocate will sum up the evidence and make submissions on the relevant law, which may be a long process. Finally, the claimant's advocate will sum up the evidence from his client's point of view and make his submissions on the law.
The Judge may give his judgment immediately, or in a more complicated case he may reserve judgment until a later date when he has reflected on the issues. The judgment will usually comprise a long review of the evidence, including the Judge's conclusions as to the truth where the evidence conflicts, an analysis of the relevant law and, finally, his decision as to which party has won and the remedy he will award.
The text of a reserved judgment may be delivered to a party's solicitors and counsel some days before it is due to be formally delivered, to allow time for costs applications to be considered and minor errors to be corrected. The court will usually order that there should be no communication with the clients or third parties regarding the result until an hour before the judgment is due to be formally announced in court.
In his statement of case, the claimant will have specified the legal remedies he is seeking, eg, specific performance of an obligation owed by the defendant, or an injunction to restrain the defendant from doing a particular act.
Most frequently, the claimant will be seeking damages. Under English law, damages are intended only to compensate the claimant for his loss. Punitive damages are available only in very exceptional cases. There are no circumstances at all in which multiple damages, for example, treble damages, may be awarded.
Subject to the special provisions relating to small claims and fast-track cases, the normal rule in English proceedings is that the loser pays the winner's costs. Such costs include not only court fees, but also the fees of the winner's solicitors, barristers and expert witnesses and numerous incidental expenses. There may be a variation on the normal rule if the Judge finds in favour of one party but considers his conduct unmeritorious. For this purpose the Judge will take into account conduct before as well as during the proceedings. The Judge may decide, for example, that it was unreasonable to pursue a particular allegation or that the claimant exaggerated his claim or that he failed to make a proper effort to settle the matter through ADR. In such a case the order may be that each side pay its own costs, or that the costs of only some of the issues can be recovered.
The order for costs is usually on the "standard" basis. This means that all the legal costs reasonably incurred by the receiving party must be paid. The amount which may be obtained on this basis is approximately 60 to 70% of the total costs which a party generally incurs.
Alternatively the Judge may award costs on the "indemnity" basis. This means that all the legal costs must be paid except in so far as they are of an unreasonable amount or have been unreasonably incurred. The difference between this and the "standard" basis is that on the "indemnity" basis any doubt as to whether or not the costs were reasonable will be resolved in favour of the receiving party instead of the paying party.
Where the court orders one party to pay costs to the other party (other than fixed costs) it may specify the costs there and then, or it may order the costs to be assessed by a court officer. In the latter case the parties' solicitors will normally try to agree the costs by negotiation and avoid the further cost of a "detailed assessment".
Following judgment, the "losing party" may try to appeal against the ruling, ie ask a more senior court to overturn it, on the ground that the decision was wrong in law, or unjust because of a serious procedural or other irregularity. Permission to bring an appeal is needed either from the judge or the senior court and it will only be given where the appeal has a real prospect of success or there is some other compelling reason. Usually the appeal court will not review the Judge's decisions on the facts of the case.
ENFORCEMENT OF JUDGMENT
Subject to any appeal, when a judgment has been given against it, the defendant will often make payment voluntarily. If he does not, various enforcement procedures are available to the claimant, for example: arranging for an enforcement officer to seize and sell the goods of the defendant; diverting debts due to the defendant from third parties; obtaining a charging order over property owned by the defendant, and obtaining an order for payment to the claimant of any sums which were previously made the subject of a freezing injunction.