Commercial Litigation - Uncovered - Part 2

This guide

This guide provides an outline of the different stages of commercial disputes in the courts of England and Wales.

It is intended only as a general and broad guide of the litigation process and should not be relied on because it is based on court rules that may subsequently change and it does not take into account certain interim remedies or post trial stages like enforcement and appeals and various special rules that apply to certain types of case, e.g. (i) the rules of specialist courts like the Patents County Court, Competition Appeals Tribunal, Tax Tribunals, European General Court and Court of Justice of the European Union, UK appeal courts; (ii) the rules of specialist procedures like Part 8 claims which can be used in certain types of claim, e.g. in commercial lease renewal proceedings; (iii) the rules of specific pre-action protocols.

In short, every case will differ and if you or your business becomes involved in a dispute we recommend that you seek immediate legal advice.

After close of pleadings

Allocation and Directions Questionnaire

After service of the Defence, the parties file a Directions Questionnaire which gives the court information about the case such as whether the parties wish to request a stay in the proceedings to mediate of pursue alternative dispute resolution (“ADR”), the numbers of likely witnesses, whether expert evidence will be required and proposals for disclosure. Maitland Walker advise their clients on these issues and how to approach them in the Directions Questionnaire.

Parties should at this stage try to agree directions dealing with these issues at this stage and the Court will:

1. allocate the case to a track at this stage either the small claims track, the fast track or the multi-track depending on the value and complexity of the claim; and / or
2. list a Case Management Conference (“CMC”) to discuss the future conduct of the case. In local County Courts like Taunton County Court, the CMC is often a telephone conference between the parties’ solicitors and a district judge or deputy district judge. In the High Court the CMC is typically in London and must usually be attended in person. Costs budgeting may also be dealt with at the CMC in which case it is usually referred to as a Costs and Case Management Conference (“CCMC”).

Interim remedies

It is usually after close of pleadings that parties will consider whether the wish to request the Court to make any interim remedies. Some examples of interim remedies we commonly seek for clients are summary judgment and / or strike out and interim injunctions. Such remedies are usually sought by an application notice supported by witness evidence.

Summary judgment or strike out

The Court can give summary judgment against a claimant or defendant on the whole or part of a claim if it considers that the party has no real prospect of successfully bringing or defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial.

The Court can strike out the whole or part of a pleading if it gives no grounds for bringing or defending the claim, if it is an abuse of the Court’s process or is likely to obstruct the just disposal of the proceedings, or if one of the parties has failed to comply with a rule, practice direction or order. Both Julian and Sheree-Ann have experience of successfully seeking summary judgment and / or strike out and can fully advise on the merits and procedure.

Interim injunctions

The Court can grant an interim injunction (an order prohibiting the other party from doing something or requiring them to do something pending resolution of the case at trial) if there is a serious question to be tried and if the balance of convenience is met. Julian had experience in seeking and defending injunction applications including in a high profile case between Transport for London and Addison Lee in 2012 (see https://www.theguardian.com/world/2012/apr/26/addison-lee-taxi-drivers-bus-lanes) where the Maitland Walker litigation team defended an application for an injunction brought by Transport for London against Addison Lee resulting in a less restrictive injunction being ordered by the Court than that sought by Transport for London.

A list of the other interim remedies that are available is set out in CPR Rule 25.1 and includes freezing orders, orders for security for costs, orders for the delivery up of goods, disclosure of documents and search orders. Our team can advise you on whether it is appropriate to seek any interim remedies.

Costs budgeting

A costs budget is an estimate of the costs which a party intends to incur in the proceedings. Costs budgets must be filed in most commercial litigation matters. All parties must file and exchange costs budgets for each stage of the proceedings no later than 21 clear days before the first CMC unless the value of the claim is below £50,000 in which case it must be filed with Directions Questionnaires. The parties must then file budget discussion reports on the other party’s costs budgets no later than 7 clear days before the first CMC.

Sanctions apply if parties fail to submit budgets. Once they are submitted the Court will generally make a Costs Management Order at the CCMC to record the extent to which budgeted costs are agreed between the parties, the court’s approval of budgeted costs that are not agreed and the extent to which incurred costs are agreed (if at all).

Mediation / ADR

The parties should consider again at this stage and at regular points throughout the litigation whether the dispute is suitable for a form of ADR. ADR can take the form of negotiations through correspondence, an informal round table meeting or more formal arrangements such as mediation, adjudication or arbitration. Our team at Maitland Walker will be best placed to advise you as to which forms of ADR are best suited to your dispute and are experienced at taking cases to mediation – indeed mediations are set in May 2018 in two of the largest cases we are currently dealing with.

Disclosure and inspection

In most large commercial litigation cases parties must file disclosure reports and seek to agree proposals for disclosure in advance of the first CMC. The Court may give a range of orders on disclosure bearing in mind the overriding objective to deal with cases justly and at proportionate cost and usually set the timetable for disclosure at the first CMC.

A common order is for the Court to give an order for standard disclosure which requires that each party disclose the documents:

• on which it relies;
• which adversely affect its own or another party’s case; and
• that support another party’s case.

Parties must undertake a reasonable search for documents, including electronic documents, that are or have been in their control. The definition of documents is very wide and includes anything in which information of any description is recorded.

The documents that the parties disclose are set out in a list which also details the extent of the searches that have been carried out. There is then a procedure for the other party to ‘inspect’ the documents that have been disclosed which is commonly done by providing electronic or hard copies but might involve physical inspection of original documents.

Witness evidence

The parties will exchange witness statements following disclosure. The date for the exchange is usually set at a CMC or otherwise agreed by the parties.

The written witness statements will contain the witness’s evidence on issues of fact and the witness is usually then cross examined on his witness statement at trial by the other party (his statement standing as his evidence-in-chief). After a witness is cross examined by the other party, the party that called the witness can ask the witness further questions by way of re-examination.

Experts

In many cases it will be necessary for the court to have the assistance of experts. Experts are generally appointed by the parties directly and the role of the expert is to provide independent evidence to the court. Expert evidence is usually given to the court in the form of a written report. The reports of the parties’ experts are usually exchanged and the experts are then cross examined at trial. Often, the experts are also ordered to meet or speak before the trial date to see to what extent their reports can be agreed and the areas of dispute narrowed.

Trial and judgment

The parties will give the Court a written outline of their case in advance of the trial. These outlines are known as “skeleton arguments”.

The length of the trial will depend on variables such as the complexity of the case, the number of witnesses and experts etc. and the length of the case will have been set well in advance, usually at the initial CMC.

The Claimant’s advocate, usually a barrister, presents the Claimant’s case orally and the Defendant’s advocate, also usually a barrister follows by presenting the Defendant’s case in what is known as “opening submissions”.

Witnesses of fact and expert witnesses are cross-examined. Cross-examination takes place after opening submissions and after any re-examination of the witnesses of fact and / or experts, the parties then summarise their cases in “closing submissions”.

Following the trial, the judge usually takes a period of time to write his judgment although he may hand it down orally immediately after the trial. An unsuccessful party can appeal from a County Court to a High Court or from the High Court to the Court of appeal, subject to permission from the lower court or appeal court. Appeals are outside of the scope of this guide as set out above.

At Maitland Walker we provide clear and practical advice having taken into account all of the options available to you and risk involved throughout the process to trial, if your case proceeds that far.

For more information on the process or if you want some advice, please do not hesitate to contact Sheree-Ann Virgin by telephone on 01643 707777 or by e-mail.

The next blog will be coming soon.