An overview of civil proceedings in England and Wales

English courts interpret legislation and are usually required to follow decisions on the same issue by a court of equivalent or higher status.

'English' law means the legal system of England and Wales. Scotland is a separate jurisdiction.

The court system

The English civil court system is divided between the High Court and the County Court. This guide addresses the procedure in the High Court, which deals largely with claims in excess of £100,000 (or £50,000 for personal injury claims).

The High Court has jurisdiction over most matters through its District Registries, which are found nationally; and the Royal Courts of Justice and the Rolls Building, which are both located in London. It is divided into three divisions: Chancery, King's Bench and Family. The Family Division is outside the scope of this guide.

The Chancery Division deals with companies generally and such specialist matters as wills, trusts, insolvency and tax. The King's Bench Division (KBD) deals with all other civil matters including contractual disputes, personal injury cases, industrial accidents, defamation cases and negligence claims.

Both the Chancery Division and the KBD have specialist courts dealing in specific areas. These include:

• in the Chancery Division, the Patents Court, which deals with intellectual property disputes, and the Companies Court, which deals with company disputes including insolvency issues;
• in the KBD, the Commercial Court, which deals with commercial disputes such as shipping, insurance, commodities, banking and other specialised financial issues. The Technology and Construction Court deals largely with information technology, construction and engineering disputes. Through its Administrative Court, the KBD also deals with applications to challenge decisions by governmental bodies.

In addition, the Business and Property Courts brings together the work of the Chancery Division and the specialist courts ('specialist lists') of the KBD, and decides specialist business and other civil international dispute resolution and business cases.

The Court of Appeal deals with any appeal from a decision of a judge. On issues of public importance there is a further and final stage of appeal, to the Supreme Court, where the appeal is heard usually by five Lord or Lady Justices.

Lawyers

The legal profession is split between barristers - often referred to as 'counsel' - and solicitors. Barristers are specialist advocates who have the right to appear in the higher courts on most substantive hearings. They also draft documents for court and give opinions on particular areas of the law in which they are expert. Barristers do not generally deal with clients directly. Senior barristers may be appointed as King's Counsel. All other barristers are known as juniors. Barristers are self-employed but operate together through chambers for administrative and financial reasons, and also to form pockets of expertise.

Solicitors have day to day contact with clients and have the main responsibility for handling a case. Solicitors may also appear as advocates in the higher courts, provided they are qualified to do so. Most commercial solicitors practise in partnership with other solicitors.

Although both barristers and solicitors are eligible for appointment as High Court judges, the majority of judges are barristers.

Civil Procedure Rules

The 1998 Civil Procedure Rules (CPRs) govern the procedure that is followed within the English civil court system. The CPR requires that all cases are dealt with in accordance with the "overriding objective" of enabling the court to deal with cases justly. This includes:

• ensuring parties are on an equal footing, so far as is practicable; and
• dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party, and ensuring it is dealt with expeditiously and fairly.

The path of a claim

A typical claim dealt with by the High Court will take approximately 12-18 months to get to trial from the date of issue of the claim form.

Pre-action matters

Before proceedings are issued, parties are required to act reasonably in exchanging information and documents in an attempt to settle their dispute without recourse to litigation. Sanctions may be imposed against parties who fail to comply with these requirements. In addition there are a number of 'pre-action protocols' – setting out the procedure which parties are expected to follow in certain categories of dispute - for example, construction and professional negligence disputes.

Issuing proceedings and court documents

Proceedings begin (are 'commenced') when the claimant 'issues' a claim form that must contain or be accompanied by the particulars of claim. The claim form and particulars of claim are critical documents, and they must properly set out a summary of the basic facts, but not the evidence, of the claim against the defendant. A failure to do this may allow the defendant to 'strike out' the claim against it. The claimant will have to pay a fee to issue the claim form. The amount of this fee depends on the value and nature of the claim, and can be a significant sum.

The claim form and particulars of claim have to be served upon the defendant in accordance with special rules and within prescribed timeframes.

When a defendant is served with court proceedings, they have to indicate whether they accept the claim or intend to defend the claim. Again, this must be done within prescribed time limits and the court must be notified of the defendant's position. If the defendant wishes to defend the claim they must serve a defence, including any counterclaim, normally within 28 days of receiving the particulars of claim. The defence is also a critical document because if it is regarded as 'weak', the claimant can seek to strike out the defence. A failure to serve a defence will allow the claimant to enter judgment in default against the defendant.

Further court documents may be served and filed at court in order to clarify each party's position. All court documents will be accompanied by a statement of truth verifying the truth of the information contained in the document.

Court documents including the claim form, particulars of claim, defence and any counterclaim will, in certain circumstances, be accessible by non-parties.

Case management and budgeting

All cases are actively managed by the courts to ensure that they are proceeded with properly, and within agreed timeframes, by helping the parties to identify the issues at an early stage and fix timetables for the disclosure and exchange of evidence and the trial date itself. The courts will also consider whether the likely benefits of taking a particular step will justify the cost. The parties have to file cost estimates and can be penalised if they exceed them.

Another part of case management by the courts is to try to encourage the parties to settle their disputes without the need for trial, with reference to alternative dispute resolution procedures (ADR) such as mediation.

Disclosure of documents

Parties must disclose to each other the documents they seek to rely on, as well as the documents which adversely affect their own case or another party's case or which support another party's case. This may include confidential documents if they are relevant to the dispute. Certain documents that are otherwise disclosable may properly be withheld from the other party on the ground of 'legal professional privilege'.

Documents include anything in which information of any description is recorded, including information held in an electronic format. Specialist platforms are often necessary to give effect to 'e-disclosure' - disclosure of electronic data in different formats.

Disclosure is a vital stage of the proceedings as the weakness of a party's position can become apparent from the documents. Proceedings can settle as a result of disclosure.

Witness statements

If a party is to provide additional oral evidence at trial, then this should be disclosed beforehand in written format. Again, this can be a vital stage in the proceedings as a party's position will become more apparent from the evidence contained in the witness statements and settlement could result.

A witness statement should set out the facts to which the witness will testify orally at the trial. It must be certified to be true by the witness. Witness statements are exchanged several weeks before the trial. At the trial the witness may amplify their statement, with the court's permission, and give evidence in relation to new matters which have arisen. All witnesses may be cross-examined by the other party's lawyer.

Expert evidence

If a party needs to rely on the opinion evidence of an expert on a particular issue, the court's permission will be required. An expert witness will be independent, and will have an overriding duty to the court and not to the party instructing them. There can be more than one expert witness per case if there are several areas of expertise to address, and a court can order the parties to share the services of an expert on a particular issue.

An expert witness may be involved in court proceedings and may be called to give evidence. There are strict rules about the content and format of an expert witness' report and the evidence they may give.

Trial

Subject to some exceptions, the vast majority of civil cases will be determined by the judge alone.

English trials are predominantly oral, requiring each party to make oral submissions and rely upon the evidence of witnesses called to trial. However, before the start of the trial, the judge will generally have read the court documents, witness statements, experts' reports and skeleton arguments drafted by counsel. The judge does not make their own investigations as such, but may require a party to clarify their position.

In summary, the trial consists of each party's advocate stating their position and calling upon the evidence of witnesses and experts that they seek to rely upon. These witnesses may be cross-examined by the opposing advocate. The trial will end with both parties' advocates summing up the evidence and making submissions on the relevant law.

Judgment may be given immediately after the trial or, in more complicated cases, reserved until a later date when the judge has reflected on the issues.

If a party seeks to appeal the judgment, the appealing party must obtain the permission of the court. Permission will only be given in limited circumstances.

Costs

Although it is at the discretion of the court, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but any breach of the CPRs or the overriding objective may result in a penalty. Generally, in the absence of unreasonable conduct, the successful party might expect to recover a contribution of approximately 60-65% of its legal costs.

Funding

Claimants and defendants can agree conditional fee agreements (CFAs) with their lawyers. CFAs allow a lawyer to charge a 'success fee' on top of their normal fees if the case is successful, and either a reduced fee or no fees if the case is unsuccessful. There are also other methods of funding a case. 

Enforcement

When a judgment is obtained, the defendant will usually make payment voluntarily. If they do not, various enforcement procedures are available to the claimant - including, for example, arranging for the defendant's assets to be seized and sold or obtaining a charging order over property owned by the defendant. There is also the option of forcing the defendant into insolvency if the judgment sum is not met.

Strategic issues

There are a number of strategic measures that may help the resolution of a case.

Offers to settle

Whilst offers to settle can be made at any time in a dispute, the CPRs prescribe specific cost advantages provided that the offer to settle meets the requirements of 'part 36'. These provisions apply to offers made by both claimants and defendants.

Offers to settle a dispute using ADR

A party who unreasonably refuses an offer to settle a case by reference to ADR may incur cost penalties.

Security for costs

The usual costs rule in litigation is that the losing party will pay a substantial proportion of the winning party's legal costs. However, those defendants that are confident of successfully defending a claim but fear that the claimant will not or cannot pay any costs awarded against them may, in certain circumstances, apply to the court early in the proceedings for an order that the claimant provide security for any costs they may be liable to pay. Security for costs can also be sought by a claimant against a defendant in respect of any counterclaim.