A Guide To The Litigation Process In England And Wales Including Disclosure In The Business And Property Courts

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
• 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
• how to use legal advisers efficiently and cost effectively; and

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 the 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. 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 the power to stay proceedings and order the parties to engage in non-courtbased 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 non-party 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 specific 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 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 and/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, 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 service 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 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.

Allocating cases

There are four tracks to which cases are allocated:

1. the small claims track;
2. the fast track;
3. the intermediate track and
4. the multi-track.

The rules in the CPR which apply will vary depending on which track the case is allocated to, with increasing levels of formality and process required the more complex and valuable the case.

The small claims track

This is the normal track for most claims up to £10,000 which will be heard in the County Court. It will also cover certain low value personal injury cases and claims of £1,000 or under by tenants of residential premises against their landlords over repairs to premises.

In small claims cases successful parties do not recover their costs from the loser unless there are exceptional circumstances. As a result, the use of lawyers is discouraged. This is intended to increase access to justice and make for a level playing field. From 22 May 2024 a new pilot scheme was introduced which automatically refers certain small claims to mediation.

The fast track

This is the usual track for claims between £10,000 and £25,000. It applies if the court considers that:

• the trial is likely to last no more than a day;
• oral expert evidence at trial will be limited to one expert per party in relation to any specialised field; and
• the case involves no more than two different fields of expert knowledge in total.

Costs recovery is based on the Fixed Recoverable Costs regime ("FRC") which was introduced in October 2023. The underlying principle of the FRC regime is to ensure parties have certainty concerning their exposure to costs. 

Once a claim is allocated to either the fast or the intermediate track, the court must then assign the claim to a band. Within each of the fast and intermediate tracks, claims will be assigned to one of four bands with band 1 being the most straightforward and band 4 for the most complex.

The more complex the band the higher the level of recoverable fixed costs.

Where a party is successful, the amount of costs recoverable inter-parties will then be determined by the stage at which the claim is settled or won and the band in which the claim is allocated to.

The intermediate track

This is a new track which was introduced on 1 October 2023 and is designed for claims not suitable for the small or fast tracks. This is now the usual track for claims with a value of between £25,000 and £100,000. It applies where the court considers that:

• if the claim is managed proportionately, the trial will not last longer than three days;
• oral expert evidence at trial is likely to be limited to two experts per claim;
• the claim is brought by one claimant against either one or two defendants, or is brought by two claimants against one defendant; and
• there are no other factors which make the claim inappropriate for the intermediate track.

There are also various types of claims which are excluded from the intermediate track which we will discuss with you if they are applicable to your claim.

Like fast-track cases (see above) costs recovery is subject to fixed costs under the FRC regime (that is, limited cost recovery even if you win).

The multi-track

This is the standard track for all other cases. When allocating a case to this track the court may either give directions about how the case is to be managed and specify a timetable or fix a case management conference and give directions about the management of the case. At the case management conference, the court will also set the trial date or specify the period within which the trial is to take place (see later).

• Factors the court will take into account in allocating a case to a particular track include:
• the value of the claim;
• the nature of the legal remedy asked for;
• the complexity of the case;
• the number of parties;
• the value and strength of any counterclaim;
• the amount of oral evidence that may be needed;
• the importance of the case; and
• the views of the parties.

Claims with no monetary value will be allocated to the track which the procedural judge considers most suitable to enable cases to be dealt with justly, taking into account the factors listed above.

Shorter and flexible trials schemes

The courts have also introduced schemes to allow for shorter or flexible trials for business-related litigation at a reasonable and proportionate cost. These are only available to claims brought in the Rolls Building which deals with claims in the Commercial, Admiralty, Chancery and Mercantile Courts and the Technology and Construction Court.

The shorter trials scheme allows the court to manage claims with a docketed judge assigned to the claim with restrictions on disclosure, witnesses and experts. The case will be heard within eight months of the case management conference and the intention is that the judgment will follow within six weeks. The CPR sets out those claims that are suitable for these schemes.

The flexible trials scheme allows the parties to determine the procedural steps and encourage parties to limit disclosure and confine oral evidence to the minimum necessary.

Summary procedures

The general rule

The general rule is that (absent any settlement between the parties) all cases must go to trial for issues in dispute to be finally decided by the court. This is particularly so where any element of your case involves a disputed issue of fact. This is because under the legal system for England and Wales, it is considered that the only way to decide issues of fact is for the court to hear live evidence with witnesses being the subject of cross- examination.

However, there are some exceptions.

Some exceptions to the general rule

The following are some examples:

Summary judgment

Either party can make this application. To succeed they need to persuade the court that the other party's claim or defence has no real prospect of success. If the other party wishes to resist the application, they must satisfy the court that there is an issue or question genuinely in dispute that ought to be tried or that there should be a trial for some other reason. Evidence is given by written witness statements rather than by witnesses in person. This feature means that cases involving disputed facts are unlikely to be appropriate for determination summarily.

There is a range of possible orders. For example, the court may give judgment for the applicant. The court may also allow the action to continue but attach conditions such as a payment into court by either party. It may give judgment on or strike out a part of the matters in dispute, leaving the remaining issues to be tried in full. The key feature of summary judgment applications is that they present the applicant with an opportunity to determine the case in their favour at an early stage and at a short hearing. Even if it is unsuccessful, in some cases it may be a tactical advantage to require the opponent to set their case out in detail in written witness statements at an early stage.

Where an issue arises in relation to timing and prosecution of the underlying case: until the application is heard, the further pursuit of other stages in the action is suspended. This means that the timetable is inevitably delayed if the application fails. This may or may not be a good thing tactically.

There is also a risk to consider when making such an application. If the application is unsuccessful, the applicant will probably be ordered to pay some of the respondent's costs immediately, even though the applicant may ultimately be successful at trial.

Default judgment

The court will enter judgment against a defendant who fails to file an acknowledgement of service or file or serve a defence within a specified time.

Interim payments

This enables a party to seek an order for payment of money on account of a claim before the full trial takes place.

Strike-out

The court has a general power to attach extreme sanctions when faced with disobedience to the rules or its orders. This includes striking out all or part of a defaulting party's case. The powers help the court to actively manage and control the conduct of the case. If, for instance, a party consistently fails to serve its list of relevant documents despite extensions of time to allow them to do so, the court may order a final extension with such a sanction attached in the event of further default. If that party then does not comply with the order, the opponent may obtain judgment against them without the need for a trial.

Sometimes a statement of case (or part of the case) can be struck out upon an application made by one of the parties or by the court's own initiative where no reasonable grounds for bringing or defending the claim are set out in it or where the claim or defence is an abuse of process of the court. This is in addition to the power mentioned above, where there has been a failure to comply with a procedural rule or court order.

Objectionable matters included in a statement of case (for instance insulting allegations about the other party which are not relevant to the matters in issue) can also be struck out.

Interim declarations

A declaration is a formal statement by a court of the legal significance of a given set of facts. This procedure is not appropriate where there is a dispute as to any material facts.

Statements of case

What is the function of a statement of case?

The purpose of a statement of case is to define the legal issues upon which the court has to decide and set out the essential facts supporting the party's position. The first statement of case is the particulars of claim; then comes the defence and subsequently others may be served. To make sure that your statement of case is correct and effective, it is important that you provide us with all of the facts relevant to your case. We will then determine which of these facts should be mentioned in the statement of case.

Each statement of case is concluded with a "statement of truth". This is standard wording by which the party on whose behalf the document is prepared certifies that the facts in it are true. It is absolutely essential the facts contained in any statement of case are correct in all respects. (See "Statements of truth" above in "Before the issue of proceedings and the duty to preserve documents".)

Amending statements of case

It is possible to amend a statement of case at various stages of an action. An amendment can usually be made without a hearing for permission to amend if the other party consents. If the other party does not consent then, save in limited cases, an amendment can only be made with permission of the court.

Generally speaking, an amendment will be allowed at any time up to trial (and in very limited circumstances during trial) so long as it does not prejudice the other party or the trial date, and usually with the condition that the party seeking the amendment pays all costs which are incurred by reason of the amendment.

Defences

If you wish to defend a claim brought against you, it is essential to serve a formal defence on time. If you fail to do so, the claimant may succeed not only in securing judgment against you in your absence but may also begin the process of enforcing that judgment against you and your property.

You may experience enormous pressures of time when preparing a defence. The courts no longer regard it as acceptable practice to serve a defence that consists wholly of bare denials and refusals to admit unpalatable or damaging allegations made in a claim. If, for example, the claimant has served a very full particulars of claim or you work for a large organisation at one location and the claim relates to matters in another division based at another location, you may find it very difficult in the narrow time frame permitted under the CPR to put together a full defence. It is possible to agree an extension of time with the other side of up to 28 days. A further extension of time may be obtained by making an application to court provided it is made before the time period for service expires.

Attacking your opponent's statement of case

Sometimes a statement of case fails to include essential ingredients of a particular claim, and failure to provide those details can be fatal to a claim. To elicit these details the party attacking a statement of case can ask for "further information" to be provided and, if it is not supplied, apply to the court for an order striking out that part of the claim (see above). Sometimes further information may be asked for so that the party making the request can be clearer about the case that has to be met.

Disclosure of documents

What is disclosure?

Disclosure is the process whereby the parties to a dispute formally state to one another which documents they hold that are relevant to the proceedings and provide copies of those documents which are not privileged.

This is a very important part of English procedure and should be undertaken with great care as it may determine the outcome of litigation.

The idea is that the court is able to determine the case with all the relevant information before it.

Disclosure can also promote settlement as the parties become more aware of the relative strength of their cases.

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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.