Progressing the caseTypical procedural steps
What is the typical sequence of procedural steps in commercial litigation in this country?
The 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 reply to defence by the claimant (an optional step);
- 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);
- pretrial review hearing (only in large or complex claims);
- any post-trial matters (eg, costs hearings, if not settled);
- appeal by the losing party (if permission is granted); and
- enforcement (if necessary).
During any of these stages, either party may make interim applications to the court.Bringing in additional parties
Can additional parties be brought into a case after commencement?
Yes. Parties can be added or substituted in existing proceedings either on the court’s own initiative, or on the application of an existing party or person who wishes to become a party.Consolidating proceedings
Can proceedings be consolidated or split?
Yes. The court has an overall power (and obligation) to actively manage cases, which includes consolidating overlapping claims so they can be tried together. This can be done either on the court’s own initiative or upon application of one of the parties.
Proceedings can be split but this is becoming increasingly rare; typically, they are split for very large disputes, where one trial will be held over liability and then a second over quantum.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 is robust in only testing and deciding pleaded facts on the basis of the evidential picture that has been put before it. In other words, the court does not speculate or construct a factual narrative. In civil litigation, the burden of proof is stated as on the balance of probabilities. This means that the facts alleged must be shown more likely than not to have occurred (ie, the court being 51 per cent sure is sufficient).
How does a court decide what judgments, remedies and orders it will issue?
The court will generally only award the relief and remedies that have been sought by the claimant or applicant, and that are within its power to award. It will rarely order a remedy or relief that has not been specifically requested.Evidence
How is witness, documentary and expert evidence dealt with?
Court directions will provide what evidence is to be adduced, when, by whom and how. In most English proceedings, the parties will exchange witness and documentary evidence. The court will only allow expert evidence if it is satisfied that the case involves matters on which it does not have the requisite technical or specialist knowledge.
Evidence in civil proceedings is usually dealt with in the following order:
- Disclosure. This is where the parties exchange between themselves lists (and, if requested, copies) of all non-privileged documents that either support or harm their case or their opponent’s case. This is usually the most time-consuming and expensive stage of the proceedings. In some circumstances it can be beneficial to seek an order for a third party (eg, a former employee) to produce documents.
- Witness statements. This is where the parties exchange statements of witnesses of fact that they seek to rely on at trial. The witness statement must be in the witness’s own words, and must be accompanied by a statement of truth. The court’s directions often provide for reply witness statements. At trial, parties tend to focus on attacking the credibility of a witness and the quality of the evidence he or she has given.
- Expert reports. If the court has allowed one or more of the parties to adduce expert evidence, the relevant experts must give evidence in accordance with the instructions that have been given to them by the relevant party or parties. Those instructions are usually disclosable to the opponent. Sometimes, joint expert evidence is ordered, but this is rare in complex commercial disputes. The expert’s duty is to the court, not to the party instructing it and paying its fees. It is usual, therefore, for parties to instruct an expert on an advisory basis first (to obtain a preliminary indication of his or her thinking) before formally instructing him or her as an expert. Parties often seek to attack the credibility of the opponent’s expert, for example, on his or her experience in the particular expert field or his or her performance during cross-examination when pressed on his or her opinions.
- Trial. The court will usually hear live, oral evidence from the relevant witnesses and experts in open (ie, public) court. The witnesses and experts are usually cross-examined by the opposing counsel. After this, the court will receive oral and written submissions from each counsel on the evidence given, and on the documents produced during the disclosure stage.
Cases are usually won or lost on the nature, content and quality of the documentary, witness and expert evidence. For this reason, the various stages described above are time and cost-heavy. However, current reforms in the English civil litigation system have sought to address this (see below).
How does the court deal with large volumes of commercial or technical evidence?
If there is technical evidence that the court could not reasonably be expected to decide without the assistance of expert opinion from practitioners in the field in question, the court will usually give direction for the production of expert evidence (see question 35). The creation of the Financial List (a specialist division of the Business and Property Courts) reduces the need for such evidence in complex banking and finance cases. This is because the judges in that division of the court have specific experience in banking and finance matters, which means that they can determine many of the issues in question without the assistance of an expert. Almost four years on, the Financial List has been widely heralded as a success. Another response to the need for technical disputes to be handled by a specialist court is the announcement this year of the creation of a new court to deal with cases involving cyber fraud and economic crime.
Evidence of commercial practices will usually be presented through witness evidence. Often, that will be developed by the parties’ counsel as part of their court advocacy.
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?
A witness in England can be compelled to give evidence in or to a foreign court. The foreign court needs to make a request for such evidence through a formal letter of request in a prescribed form. An application then needs to be made to the English court, usually ex parte.
English courts can also compel a foreign witness to give evidence. An English court can issue its own formal letter of request to the relevant judicial authorities of the foreign country. The ease and length of time it takes to obtain such evidence can vary considerably depending on the country in question.
How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
English courts are increasingly placing more evidential weight on documentary evidence than witness evidence. It is very difficult to challenge documentary evidence unless it is inadmissible (eg, privileged) or questions can be raised as to its authenticity. Such questions are usually dealt with in discrete applications before trial (authenticity questions in particular must be raised promptly).
Witness evidence is presented initially as a written witness statement. The evidence is given under oath (which means that contempt of court can follow if it is found to be untruthful), and can only be challenged through live cross-examination at trial. If the witness in question is unable or unwilling to present him or herself for cross-examination, then the weight of the evidence adduced can be challenged. The weight that the court places on the evidence tends to be determined by the reason for the non-attendance. For example, if the witness has died or is seriously unwell, the evidence will carry greater weight than if the witness was reluctant to attend trial because of (for example) a holiday commitment. Overseas witnesses can provide video evidence.Time frame
How long do the proceedings typically last, and in what circumstances can they be expedited?
It is rare for complex commercial litigation cases to last less than 12 months. More often, they last between 12 months and two years (and sometimes longer). Cases can be expedited if they proceed under the Part 8 route (which is designed for cases where there is no substantial dispute of fact). The court also has the power to expedite cases under its general case management powers if there is good reason to do so (eg, the proceedings would be futile if they were not expedited - such as when the claimant complains about the effect of a restrictive covenant).Gaining an advantage
What other steps can a party take during proceedings to achieve tactical advantage in a case?
A party can apply to strike out another party’s entire case, or part of that case. The threshold to do so is high (see question 27). A party must show that part or all of the case in question discloses no reasonable grounds for bringing or defending the claim, that the statement of case is an abuse of process or otherwise likely to obstruct the just disposal of the proceedings, or that there has been a failure to comply with a rule, practice direction or court order.
In practice, courts are reluctant to strike out cases, either in part or whole, unless there are very clear grounds to do so. The court will, more often than not, afford a party a second chance to plug any gaps in its case to avoid time and cost being incurred in having an entirely new set of proceedings started. A party considering strike out should therefore be mindful that a strike out application can cause the other party to strengthen its case where it would otherwise have remained deficient.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 funding and insurance has unquestionably changed the English litigation landscape. First, many claimants that were previously unable to pursue claims for lack of funding, or wished to deploy their resources on other initiatives, now have access to a range of bespoke financing and insurance options in what has become a sophisticated and competitive market. This allows many more meritorious claims to be pursued (all the way to trial if necessary) than was previously the case. It has, for example, made it easier to bring group actions against major corporates and financial institutions. Secondly, the involvement of third-party financiers creates an additional, and often complex, dynamic in cases, which must be borne in mind by claimants and defendants alike. While funders and insurers cannot control a litigation, they are nevertheless a stakeholder in it, and their position must be considered as the litigation progresses. They must, for example, be kept updated of material developments in the case. Finally, the involvement of a third-party financier can encourage an early settlement. At the outset of a case, for example, the involvement of a third-party financier can send a powerful message to a defiant defendant. From a claimant’s perspective, an early settlement in a funded case is likely to mean that it is able to retain a higher proportionate share of the winnings, since a financier’s share of the winnings typically increases as the case progresses.Impact of technology
What impact is technology having on complex commercial litigation in your jurisdiction?
There is an increasing willingness, if not desire, on the part of the English courts and English lawyers to embrace new technology to assist in the determination of complex commercial cases, particularly where such technology reduces costs, streamlines the litigation process and allows key evidence to be identified more readily.
For example, in 2016 the English court approved, for the first time, the use of technology to identify relevant documents in a disclosure exercise. Since disclosure is one of the (if not the) most time-consuming and expensive parts of the English litigation process, if used appropriately this has the obvious potential to reduce the time and cost of litigation quite considerably. While it remains usual practice for disclosure reviews to be conducted on a document-by-document basis by lawyers, technology is being used increasingly in other aspects of case management, for example to select the most relevant documents at an early stage in the case for the purpose of determining case strategy.
Further, case materials and filings in the Commercial Court are now managed electronically using a system called CE File, which means that key case materials can be obtained very quickly (often instantly).
Technology is impacting complex commercial litigation in England in other ways. Witnesses can, for example, provide evidence by video link, but only if there is good reason to do so (eg, the witness is seriously unwell or if there is another reason why he or she could not reasonably be expected to physically attend court). The court is also increasingly receptive to the use of visual technology to allow trial advocates to explain complex points, or to use that technology to assist a factual or expert witness to give evidence.
The Commercial Court is yet to see its first full paperless trial, but there is a significant investment in court technology to assist with the progression of cases, such as live transcripts of proceedings that hyperlink to documents in the trial bundles mentioned during proceedings.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?
The court has discretion to stay civil proceedings pending the outcome of related criminal or regulatory proceedings. However, in practice the bar to obtaining such a stay is high. The court must be satisfied that there is a real risk of serious prejudice that may lead to injustice, and it must pay regard to competing considerations between the parties. The court must also consider whether safeguards can be imposed in the civil proceedings that provide sufficient protection against the risk of injustice. Those safeguards could include, for example, press reporting restrictions or having certain parts of the civil proceedings heard in private. Even if a stay to the civil proceedings is ordered, it could be limited in time. Courts are generally reluctant to stay proceedings on an open-ended basis.
The threat or existence of parallel proceedings creates a number of tactical considerations for parties to civil litigation. A threshold question for claimants will be whether to wait until the criminal or regulatory proceedings have concluded before bringing a civil claim. Those other proceedings might, for example, generate findings or evidence that can be used against a defendant to civil proceedings. Pursuing civil proceedings parallel to criminal or regulatory proceedings also creates the potential for a party being forced to reveal a position or disclose evidence in one set of proceedings that is harmful to it (or another party) in another set of proceedings. This can present both an opportunity and a risk to the parties involved in the civil litigation, and very careful consideration needs to be given in light of the various possible outcomes that may arise.
Under section 6(1) of the Prosecution of Offences Act 1985, a company in England and Wales has the right to commence criminal proceedings against another. These are known as private prosecutions. The relative speed of such proceedings (when compared to civil proceedings), and the favourable rules on costs, can make private prosecutions a viable alternative to civil litigation. They are particularly useful in complex cases where the state lacks the resources or availability of expertise to investigate matters where criminal conduct is suspected. Victims of the criminal conduct can seek financial redress through the private prosecution regime, and the court can make a confiscation order to recover the benefit that the criminal party has derived from the crime. Private prosecutions (or the threat of them) can therefore be used as a useful tactical weapon in appropriate cases.