English Civil Litigation Procedure – A Comprehensive Guide
Litigation can be a complex and daunting process, particularly for those unfamiliar with the English legal system. This guide provides an overview of the key steps involved in civil litigation in the English courts.
The Legal Framework
Unlike in jurisdictions such as Russia or Kazakhstan, English civil law is not codified in a single document. Instead, it is formed by case law (court decisions) and legislation passed by Parliament. Courts interpret legislation and generally follow previous decisions made by courts of equal or higher authority.
Court Structure
The English civil court system comprises the High Court and county courts. This guide focuses on the High Court, which handles claims exceeding £100,000. The High Court consists of three main divisions:
- Chancery Division – Handles financial disputes, company matters, trusts, insolvency, and tax issues.
- King’s Bench Division – Deals with general civil disputes, including contract and tort cases.
- Family Division – Covers family-related legal matters.
Specialist courts within these divisions include the Commercial Court, Admiralty Court, Technology and Construction Court, and the Insolvency and Companies Court. Cases in the High Court are typically heard by a single judge.
Appeals may be brought before the Court of Appeal, generally heard by three judges, and the Supreme Court, where cases are usually heard by five judges.
Open Justice and Confidentiality
As a general rule, English courts operate under the principle of open justice. This means that court proceedings and documents are publicly accessible. However, in certain circumstances, litigants may apply for confidentiality measures such as:
- Confidentiality agreements.
- Requests to restrict public access to court files.
- Applications for private hearings.
Nevertheless, courts are not obliged to grant these measures, and confidentiality protections can be lifted at trial.
Legal Representation
English law distinguishes between solicitors and barristers:
- Solicitors manage case preparation, draft documents, organise evidence, and conduct negotiations.
- Barristers specialize in court advocacy. Senior barristers, known as King’s Counsel (KC), handle complex cases. Some solicitors obtain “Higher Rights of Audience,” allowing them to represent clients in higher courts.
Pre-Action Protocol
Before commencing litigation, parties must follow pre-action protocols designed to encourage early resolution and a fair start to proceedings. Failure to comply can result in cost penalties.
Commencing Litigation
Litigation begins when a claimant issues a claim form accompanied by particulars of claim. The claim form must be served on the defendant within:
- 4 months (if served within England and Wales).
- 6 months (if served internationally).
Upon receipt, the defendant must file an acknowledgment of service and indicate whether they intend to defend or challenge jurisdiction. If the claim is defended, a defence must be submitted within 28 days. A counterclaim, if applicable, must also be served within this period. If no defence is filed, the claimant may apply for default judgment.
Case Management
Once the defence is submitted, case management begins. The court ensures smooth proceedings by setting directions, including deadlines for evidence exchange and trial preparation. If parties cannot agree on a timetable, the court will impose one during a case management conference.
Disclosure
During disclosure, each party must share relevant documents, including electronic records, whether they support or undermine their case. Parties are obligated to preserve relevant documents and may be required to certify compliance with disclosure rules.
Witness and Expert Evidence
- Witness Statements: Witnesses provide written evidence before trial, confirming its accuracy under oath.
- Expert Reports: If technical expertise is required, expert reports may be submitted, subject to court approval. Experts owe an overriding duty to the court rather than to the party instructing them.
Trial Process
Most civil trials in England are conducted without a jury. Counsel present evidence and legal arguments before a judge, who may question witnesses and lawyers. Judgment may be delivered immediately or reserved for a later date.
Costs and Appeals
- The losing party usually pays the winning party’s legal costs, typically 60-65% of actual expenses.
- Appeals must be filed within 21 days and are permitted only on legal or procedural grounds.
Enforcement of Judgments
If a judgment debtor fails to pay damages, enforcement measures include:
- Asset seizure or charging orders.
- Third-party debt orders (redirecting funds owed to the debtor).
- Bankruptcy or liquidation proceedings.
- Freezing orders to prevent asset dissipation.
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