Practical Guide to Litigation

Jonathan Leslie, John Kingston

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9781000286281
• Edition: 2
• Topic: Law
• Subtopic: Arbitration, Negotiation & Mediation in Law
• Index: Law

Against the background of Lord Woolf's interim report "Access to Justice", this text includes accounts of tactical matters and practical litigation "tips", as well as descriptions of the procedures involved. Litigation is often conducted by companies who do not have much practical experience of the processes that might be expected of them. The same applies to others who become involved in litigation without actually having to conduct the procudure as lawyers. This book is intended to give a brief, clear and comprehensive overview of litigation, arbitration and ADR in England.

Intended as a comprehensive overview of litigation, arbitration and ADR in England, this guide is aimed at clients and firms who are involved in, or assist cases, who would like to understand the process better in a non-technical way but do not want to see every statement supported by authority.

CHAPTER 1

INTRODUCTION

In recent years there has been a proliferation of litigation in England that has followed similar trends in other countries, especially the United States of America. Many disputes that might before have been settled amicably nowadays tend inexorably to lead to lengthy contested battles, as the amounts of money in issue increase, the legal and factual issues multiply and the parties themselves show a greater willingness to employ litigation as a tool of corporate policy. This trend has been matched by the development of litigation practices in law firms.

Lately, this tendency has itself been arrested as disputants, concerned by the difficulty and expense of resolving disputes, have embraced methods of assisted settlement.

This Guide is intended to describe the important movements towards alternative processes for dispute resolution; to offer an introduction to the process of civil litigation¹ and arbitration in England for the use of those who sometimes, or even frequently, become involved in commercial disputes; and to explain the recent initiatives taken by the judiciary to improve and streamline the current system.

THE CURRENT SYSTEM OF LITIGATION AND ARBITRATION IN ENGLAND

Before describing the system of litigation and arbitration, we begin by drawing attention to the extremely important initiatives that have recently been adopted by clients and lawyers alike to promote the early settlement of legal disputes by a flexible process that encompasses a number of similar methods that are together known as “alternative dispute resolution”, or “ADR”. ADR aims to avoid the distractions and costs of legal battles by promoting early settlements, often through a neutral mediator. Settlements of this type are becoming a deservedly more popular and effective means of resolving disputes before the formal legal process begins. A detailed account of this process is set out in Chapter 2.

1. We do not deal with the quite separate system of criminal procedure.

Consideration should almost always be given to the possibility of an early settlement. Indeed, the courts have recently espoused the principle of ADR and may ask the parties to consider such forms of settlement; but, if it is not possible to achieve that objective, it is necessary to consider what other means exist for the lawful determination of a dispute.

The two principal ways in which legal disputes in England² are resolved in the absence of settlement are by litigation and arbitration. They are, in a sense, rival systems, and each has its supporters and detractors. Neither may be said to be “better” than the other, although they may each have advantages and disadvantages that make them more or less appropriate in any given case. “Litigation” is the name given to the process of the compulsory determination of legal disputes through the courts. “Arbitration” is the voluntary determination of such disputes by a procedure agreed to by the parties without initial recourse to the courts. The two systems, although different in a number of important respects, have in England become alike in many ways, but both have significant differences from the legal processes adopted by those countries with a codified system of civil law, such as apply in Continental Europe. This Guide concentrates on civil litigation, which is still probably the most common method of dispute resolution in England in the majority of cases.

These two systems have dominated the procedural landscape for generations. Their efficiency has come under increasing scrutiny. We describe below the main faults in the system of litigation, and the current movement towards reform. Other methods of resolving disputes have now become an important part of the litigator’s repertory. Those methods are all fully explained later in this Guide.

English civil procedure is distinguished from the procedures of some other systems by a number of important features. First, it is adversarial: that is, it involves the court sitting impartially to determine disputes among a number of hostile participants, each of whom has a case to assert or to defend and where the court plays little part in the process of identifying the facts and the legal issues to be tried. This is different from those Continental systems that adopt an inquisitorial role, in which the courts dominate the procedure and place more emphasis on ascertaining for themselves the relevant facts.

Secondly, these participants, to a large extent, formulate the issues for the court to decide, dictate the pace of the case and the general way in which it is conducted and decide on the evidence to be adduced. Despite some recent judicial exhortations to the contrary, the judge currently plays a less interventionist role than in some other countries and will not normally interfere of his own volition with the way any case is put in law; with the way in which it is presented; nor with the lengthy pre-trial preparations. It is for the parties, and not for the courts, to ensure that all necessary evidence is made available. Further, there are often much more onerous obligations than in some other countries to disclose documents to an opponent, even though they may be damaging to the discloser’s case.

2. Generally, throughout this Guide, when we refer to the procedures of English litigation and arbitration, these should be taken to include Wales. Scotland, Northern Ireland, the Channel Islands and the Isle of Man have their own separate laws and procedures. We comment on the relationship between the English courts and the European Court of Justice in Chapter 39.

Lastly, in England, cases are ultimately decided in public in open court after oral argument and the examination of witnesses. Although recent innovations have placed rather greater emphasis upon written submissions than before, this tradition of orality still lies at the heart of the English process.

These features often seem strange to many litigants, particularly those from overseas. We hope that advance warning of the idiosyncrasies of the English system may avoid some unwelcome surprises, both for those overseas, and indeed, in the United Kingdom.

Litigation in this country is conducted under procedural rules that are derived from a mixture of statutes (that is, Acts of Parliament), common law (that is, law created by the judges in the course of deciding cases) and what is called “the inherent jurisdiction of the court”, which is the power of the courts to regulate their own procedures, subject to statute and to common law precedent. The rules are frequently updated to reflect changes in the substantive law. “Substantive law” is the term for the general system of law that creates rights and liabilities—for example, the law of contract, trusts and torts. “Procedural law” governs the system by which those rights and liabilities are adjudicated in the courts, and is equally important, for without it there are no means of giving effect to the substantive law. The two systems are interdependent: a sound knowledge of what may perhaps seem to be a dry subject is essential for the proper conduct of a claim. Without a grasp of procedure, a good claim cannot be pressed home; and a poor defence can often be advantageously deployed by a superior knowledge of the process involved.

Often, the rules of procedure cannot and must not be circumvented, but the litigator’s skills are to improvise and to explore ways around procedural obstacles. For both reasons, a mastery of the rules can often enable a party to achieve results better than the legal merits of the case might seem to justify.

A consequence of the adversarial system is the extent to which the results of litigation often reflect the comparative skills and strengths of the lawyers involved and, just as importantly, the dedication of the client in pursuing or defending his claim.

One of the points that we hope will emerge from this Guide is the extent to which litigation can only successfully be pursued by a team effort that involves the lawyers and the clients working closely in full co-operation. Justice will not be done to a case in which the lawyers merely accept the role of supine agents “following instructions” or slavishly go through the motions set by the books’ procedures. Equally, to do their job properly, lawyers need the...