A Guide To The Litigation Process In England And Wales

Introduction

If you are involved in a dispute in England and Wales you need to know:

• what options there are for resolving the dispute;
• what litigation involves; the
• steps from the start of proceedings to trial;
• what parties to proceedings have to do;
• the fundamentals of court procedure;
• how to use legal advisers efficiently and cost effectively; and what happens
• after judgment.

The civil justice rules, which had been developed over centuries, were discarded in 1999 and replaced by new rules of court procedure. These rules are known as the Civil Procedure Rules ("CPR"). The aim of the CPR is to make civil justice more accessible, fair and efficient. The CPR are not just another set of rules tacked on to an existing way of doing things: since their inception they have demanded a completely new code of behaviour and attitude to dispute resolution. In particular there is an emphasis on the need to focus on investigating and preparing the case at an early stage of the dispute and commit management resources to the resolution of the dispute.

It should be noted that many of the rules have recently been re-drafted to reflect the work of thew Civil Rules Committee to simplify and condense the rules. All of these changes including all revisions made up to and including 31 January 2025 have been incorporated into this note. It should be noted that many of the rules have Civilwork of the Civil Rules Committee

to simplify and condense the rules. For cases being heard in the High Court there are, in addition to the CPR, court guides for each of the divisions. These provide further guidance on procedure as well as, from time to time, Practice Notes which practitioners are required to follow.

All cases which proceed to litigation are subject to the "overriding objective" brought in by the CPR (see below "The overriding objective").

The CPR categorises cases into four tracks: the small claims track, the fast track, the intermediate track and the multi-track (see "Allocating Cases" below). Most of this note is concerned with the most substantial category of case, the multi-track. 

The note does not detail the different courts in which a claim may be heard. We will discuss this with you if you intend to commence or defend any proceedings.

Many of the courts are now subject to electronic working so proceedings are commenced and continued

electronically, allowing parties to issue and file applications 24 hours a day, every day of the year. Some claims will be dealt with completely on-line and we will advise you if your claim falls within one of these schemes.

In a general note such as this, our aim is to provide an overview rather than a detailed guide. The litigation process has many variables. Inevitably, points will arise which have not been covered in this note. It should therefore be used as an overview and not as an ultimate authority on any of the points covered. We will give advice on specific matters as and when they arise.

Before the issue of proceedings and the duty to preserve documents

We set out below some of the key issues which should be addressed before the issue of proceedings.

Is there an alternative to litigation?

There are ways of resolving disputes other than through court proceedings. Structured alternatives are sometimes described as alternative dispute resolution ("ADR") and include mediation, early neutral evaluation ("ENE") and expert determination, as well as arbitration. The role of ADR has become increasingly important, and it is likely that ADR is going to become a compulsory part of the litigation process.

The court will expect all parties, subject to some limited exceptions, to consider the use of ADR during the course of proceedings. Indeed, the court has power to stay proceedings and order the parties to engage in non-court based dispute resolution process with a view to settling the issues between them. In some cases, it may be appropriate to initiate negotiations to resolve a dispute before the issue of proceedings, so long as in so doing the other party does not misconstrue such an approach as a sign of weakness. Indeed, the courts expect parties to consider whether some form of ADR would be more suitable than litigation before proceedings are commenced.

Is your opponent worth anything?

If you are a claimant, you should investigate whether the defendant will have any assets available to satisfy any judgment that you may obtain. If you are a defendant faced with an impecunious claimant, you should consider whether to apply for security for costs (see "Some possible steps before trial" below). Publicity

Publicity considerations may be important in determining the strategy in proceedings. Today, as a general rule of thumb, one should assume that a nonparty might be able to obtain a copy of any document filed at court, although it may be possible to apply for an order restricting access.

Broadly speaking, each party is entitled to have heard in open court all the relevant issues in the case, although there are some very limited exceptions. For example, in cases involving highly confidential matters or trade secrets, it may be possible to persuade the court to hear the matter in private. However, changes to the rules have highlighted the principle of open justice and that hearing cases in private will be the exception.

Confidential documents and disclosure

It is important for you to appreciate at the outset that if you are issuing court proceedings you may have an obligation to disclose to your opponent all documents relevant to the issues to be tried, even though those documents might be harmful to your case and even though those documents might be confidential (see below "Disclosure of documents" for a fuller explanation).

No ownership of witnesses

There is no "property" in a witness of fact. This means that there is nothing to prevent your opponent approaching any potential witness of fact if they may have relevant evidence to give. That may, depending on the circumstances of the case, involve your employees and clients. Your opponent might try and do this for genuine evidential reasons or for tactical reasons. If these are matters of concern for you, you must raise them with us at the outset to enable us to formulate the appropriate tactics in conjunction with you.

Pre-action protocols

Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims which include professional negligence, personal injury, media and communication claims, construction and engineering disputes, housing disrepair, possession and mortgage arrears, debt claims and judicial review. 

Even if no specific pre-action protocol exists, there is a general pre-action protocol that requires parties in all cases to act reasonably.

The objective of these rules is to:

•  try to avoid the need for legal proceedings by considering another form of ADR to assist with settlement; and
• encourage the exchange of information and documents that are relevant to the claim from the outset so that the parties understand each other's position. This will assist parties in making decisions as to how to proceed, as well as support the efficient management of any proceedings and reduce the costs of resolving the dispute.

Parties to a potential dispute not covered by a pre-action protocol should follow a reasonable procedure, suitable to their particular circumstances. As set out in the general pre-action protocol, this will normally include

• the claimant writing to give details of the claim, enclosing copies of documents relied upon and asking for copies of those key documents which the claimant believes the defendant has and identifying what the claimant wants from the defendant; 
• the defendant responding within a reasonable time - 14 days in a straightforward case and no more than three months in a complex one; and
• complying with the other party's reasonable requests for further information. 

These rules should not be used as a tactical device to obtain an unfair advantage over the issues. If these initial steps do not produce a settlement, then the parties should review their position and at least seek to narrow the issues. 

If the court considers that a party has not complied with a relevant pre-action protocol and this has led to unnecessary commencement of proceedings or costs, it can order the party in default to:

• stay the proceedings until the steps which have to be taken have been taken;
• pay the costs of the proceedings or part of the other party's costs; and
• pay the costs on an enhanced basis (known as the indemnity basis).

The costs provisions of the CPR require the court to take into account the conduct of the parties when making an order for costs. This includes conduct before as well as during proceedings. One of the factors that the court will take into account is the extent to which the parties have followed any relevant pre-action protocol. This could mean that the court could deprive a successful party of some or even all of its costs. Before the event insurance

Many people have insurance policies that may cover the pursuit or defence of litigation and associated costs. It may even cover the substantive liability for a claim. Prospective parties to litigation should review all insurance policies that they have. If a policy may respond, early notification of a claim is critical. Otherwise, the insurer may decline cover.

After the event insurance

The insurance market has developed and is continuing to develop products to deal with the insurance of risks and payment of costs in litigation.

Broadly speaking, in return for the payment of an appropriate premium a party can obtain insurance for their potential liability to pay costs up to a certain level. This can include:

• that party's own legal costs up to a specified level; and
• that party's liability to pay the opponent's costs up to a specified level.

Changes to the law in April 2013 mean that recovery of these premiums from an opponent if you are successful is no longer possible in most, but not all claims.

Duty to preserve documents

Once a party becomes aware of the likelihood of litigation, that party is under a duty to preserve and keep all documents that may be relevant to the issues. This includes the suspension of any relevant document destruction process. Indeed, you will probably be required to explain when you gave instructions to preserve documents.

This obligation extends to electronic documentation. A failure to preserve documents at the outset, or to give proper disclosure once litigation has commenced, can result in judicial criticism, financial penalties or adverse inferences which may be very harmful to the case. The process known as disclosure is covered in more detail under "Disclosure of documents" below.

Statements of truth

It is a requirement of the CPR that parties (or, in certain circumstances, their legal representatives) should sign statements of truth in relation to all manner of steps in the proceedings. This is a statement that the party putting forward the document believes the facts stated in the document are true. For example, whenever a party to proceedings puts forward a formal statement of case, an application notice in certain circumstances or a witness statement that party must sign a statement of truth verifying that they believe the contents of the documents to be true. For example, whenever a party to proceedings puts forward a formal statement of case, an application notice in certain circumstances or a witness statement, an appropriate individual must sign a statement of truth verifying that they believe the contents of the documents to be true.

Following changes to the CPR any document requiring a statement of truth must also state that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. It should be noted that anyone found guilty of contempt of court could ultimately be imprisoned. 

In the case of a corporate party, a person who holds a "senior position" in the company or corporation must sign the statement of truth. The definition of those in a "senior position" includes management staff.

The overriding objective

Cases that proceed to litigation are subject to the overriding objective.

It is the duty of the parties to help the court to further the overriding objective. The overriding objective is applied to enable the court to deal with cases justly and at proportionate cost.

This specifically includes, so far as practicable:

• ensuring the parties are on 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 a case is dealt with expeditiously and fairly;
• allotting to a case an appropriate share of the court's resources, while taking into account the need to allot resources to other cases;
• promoting or using alternative dispute resolution; and
• enforcing compliance with rules, practice directions and orders.

The court will at all times consider whether the parties are acting reasonably in connection with the dispute, both before and after the issue of proceedings.

A party who conducts litigation other than in accordance with the overriding objective risks severe costs penalties.

Further discussion of proportionality is dealt with below under “Costs”.

Starting proceedings

Time limits for service

Once issued (i.e., lodged at the court office with the fee paid), a claim form is only valid for 4 calendar months (6 months if being served out of the jurisdiction of the court i.e., outside England and Wales).

In practice this means that the claimant must despatch the claim form, if serving it within the jurisdiction, before 12:00 midnight on the calendar day 4 months after the date of issue of the claim form, otherwise it will lapse.

There are certain circumstances in which the validity of a claim form may be extended, but an application to the court is required and this should be made prospectively before the claim form expires. If there are any specific concerns about, for example, limitation periods, then it is absolutely imperative that the claim form is served in time. Proceedings are only properly instituted once they are despatched.

Where a claim form is to be served out of the jurisdiction, different rules apply but the claim form must be served within a 6-month period.

Acknowledging service

Once the particulars of claim are served on a defendant (this may be simultaneous with the claim form or it can be done separately), the defendant must within 14 days either file an acknowledgement of service form or file a defence. If the defendant is located outside of the jurisdiction, then a different period may apply. Once the defendant lodges an acknowledgment of service form, they must serve the defence within a further 14 days. If a defendant does not comply with these time limits, the claimant may apply for judgment in default without a hearing. In the case of a claim for a specified sum, this can be for the amount claimed in the claim form. If judgment in default is for an unspecified sum (e.g., damages for libel), the amount of the damages will have to be determined by a judge.

Case management by the court

The court has an express duty to manage cases. This includes, for example:

• encouraging co-operation and settlement between the parties (including the use of ADR if appropriate);
• identifying the issues in the case and deciding the order in which these issues should be dealt with;
• deciding on timetables and directions to ensure the efficient handling of the case;
• consider whether to order or encourage the parties to engage in alternative dispute resolution;
• making appropriate use of information technology;
• where possible minimising court attendance by the parties and dealing with as many aspects of the case as is possible on the same occasion; and
• undertaking a cost benefit analysis in relation to each proposed step in the case.

The court can take any step or make an appropriate order for the purpose of managing the case and furthering the overriding objective.

The court can exercise its authority on its own initiative, and it does not have to wait for either party to take a particular step.

Before the CPR came into effect, it used to be the case, by and large, that the pace and conduct of the litigation was under the control of one or the other or both of the parties to the litigation. That is no longer the case. Once commenced, litigation is under the control of the court. The CPR encourages parties to act more reasonably and agree between themselves procedural stages, but this is subject to the court's much tighter overall control over the proceedings. To avoid the court imposing its control, the litigation should be pursued diligently.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.