United Kingdom

Capital: London
Largest city: London
Official Language: English
Government: Unitary parliamentary constitutional monarchy
Area: 242,495 km2
Population: 67,886,004
Currency: Pound Sterling (GBP)
GDP total: GBP2.215 trillion (USD3.124 trillion)
GDP per capita: GBP33396.46 (USD47,089)
Time zone: UTC/ UTC +1
Calling code: +44
Internet TLD: .uk

[Source: Wikipedia]

Q&A on Commercial Litigation
  1. What is the court structure applicable to commercial disputes in England and Wales?
    Commercial disputes are generally dealt with by a County Court in the region which is local to the defendant party. This is initiated by the claimant party submitting their claim to a County Court Hearing Centre relevant to the particular dispute, after which it is allocated to the appropriate County Court.
    However, if the value of the claim is more than £100,000 (or £50,000 in a claim for personal injuries), then the appropriate Court for the dispute may be the High Court, which hears appeals as well as first instance cases.
    Appeals of a decision of the High Court will be heard in either the Court of Appeal or the Supreme Court, both of which hear appeals based on points of law only.
  2. Who decides questions of law and fact in the courts of England and Wales?
    Questions of both law and fact will be decided by the Judge. Civil cases in England and Wales are not heard before a jury (with libel and slander trials being the main exceptions to this rule).
  3. What is the nature of legal representation in England and Wales? Do foreign lawyers have a right of audience in the England and Wales courts?
    As the legal profession is not a fused profession in England and Wales, both claimant and defendant parties will generally have a legal team made up of both solicitors (who prepare the legal documentation and provide specialist legal advice) and barristers (who practise as advocates, representing clients in court). Barristers are commonly referred to as ‘Counsel’ or those more senior and prominent (who are appointed by the Lord Chancellor) as ‘Queen’s Counsel’ (“QC”).
    In order for a foreign lawyer to be able to practice in England and Wales, they must register to become a ‘Registered Foreign Lawyer’ with the Solicitors Regulation Authority.
  4. What types of legal fee arrangements are generally adopted by lawyers of England and Wales? To what extent are legal fees fixed by law?
    In commercial litigation, there is no fixed guidance on legal fee arrangements.
    The majority of lawyers will work on an hourly rate basis, with some providing fixed fees for smaller and distinct matters or in larger and more complex matters specific stages of the proceedings (for example, disclosure or preparation of witness statements).
    Some lawyers will agree to act on a conditional fee agreement (‘no win no fee’) but this is not common and will likely only be agreed to with the benefit of a positive counsel’s advice on merits.
  5. What are the time limits applicable to commercial disputes in England and Wales?
    The time limits for bringing a commercial claim are generally governed by the Limitation Act 1980. Different types of claims will attract different limitation periods, but the general rule for contractual claims is that the claim has to be made within 6 years of the day the cause of action accrues (i.e. normally the day of the breach of said contract).
  6. Are there any pre-action discovery procedures available to a party who wishes to initiate a claim?
    There are pre-action protocols and guidance in place which the parties are expected to follow. This includes the Letter before Claim (or Letter before Action) which will be sent before the formal commencement of a claim. Under the pre-action guidance, parties are encouraged to exchange all material documentation at this early stage so as to be aware of each other’s case at the outset in the hope that this shall help narrow the issues and aid possible settlement.
    It is also possible for a party to apply to Court for ‘pre-action disclosure’ if the opposite party refuses to provide requested documentation (though they rarely succeed).
  7. What role does mediation play in the litigation process? Is mediation imposed as a prerequisite to a commercial claim or is strongly encouraged by the Courts of England and Wales?
    Mediation is one form of alternative dispute resolution (“ADR”). There is no imposition of any ADR in England and Wales, however, parties are strongly encouraged to partake so that this may achieve an early settlement. An unreasonable refusal to engage in ADR by one party when another party invites them to do so can result in substantial costs penalties.
  8. How is a commercial claim initiated in the courts of England and Wales?
    In general, the claimant party (or Claimant) will have to file an appropriate Claim Form and Particulars of Claim with supporting documents as well as pay the required court fee. This is usually done via their appointed legal representatives or solicitor.
    The Court will then formally issue the Claim and return the sealed (stamped) documents to the claimant party or its legal representatives.
  9. What happens if a defendant fails to respond to a claim?
    In most types of claims the defendant party (or Defendant) is given 14 days to acknowledge service of the claim and/or file a Defence. If the Acknowledgment of Service is filed, the Defendant then has an additional 14 days to file a Defence. If neither document is filed within time, the Claimant is able to apply for a ‘default judgment’ of the claim – i.e. a decision by a Judge based on the papers (documents) before him/her and without further reference to the Defendant.
  10. Are there any summary procedures which can be applied for by the plaintiff or defendant in a commercial claim?
    Yes, it is possible for either party (Claimant or Defendant) to apply for a summary judgment on the basis that the other party has no real prospect of succeeding in or defending the claim and there is no other compelling reason why the case or issue should be determined (disposed) of at trial.
    In addition, either party can apply to strike out the whole or part of the other party’s claim or defence. (This is difficult and is generally seen as a last resort.)
  11. What interim reliefs can a party seek to maintain the status quo or prevent further loss or damage pending the final decision of the Court?
    There are various interim measures which the Courts of England and Wales have the power to grant depending on the specific facts of each case. The list below gives an overview of typical interim measures as provided for by the Civil Procedure Rules (“CPR”):

    • Interim injunctions and interim declarations.
    • Orders regarding detention, custody, preservation, inspection, sampling, sale of or payment regarding a property.
    • Orders authorising the entry into any land or building.
    • Orders to give up goods.
    • Freezing orders and search orders.
    • Orders for disclosure of documents or inspection of property.
    • Orders for interim payment on account of any damages, debt or other sum.
    • Orders regarding the payment of monies into Court (e.g security for costs); and
    • Orders regarding the enforcement of intellectual property proceedings.
  12. What sort of evidence is required to support a commercial claim? How do the courts of England and Wales evaluate oral and documentary evidence?
    A commercial claim will generally be supported by the claim documents (such as Particulars of Claim), witness evidence (in the form of witness statements) and, depending on the nature of the case, expert evidence.
    In evaluating both oral and documentary witness evidence, the Courts will look at a range of factors, including:

    • the consistency of the witness’ evidence with the incontrovertible facts;
    • the internal consistency of the witness’s evidence;
    • consistency with what the witness has said or deposed on other occasions;
    • the credit of the witness in relation to matters not relevant to the litigation;
    • the general behaviour and demeanour of the witness.
  13. When will a court consider expert evidence and how are expert opinions treated?
    Expert evidence can only be submitted with the Court’s permission. Whilst standard witnesses will only give evidence of facts within their knowledge, an expert witness provides opinion evidence which is supported by technical analysis.
    If deemed necessary by the Court, expert evidence will either be provided by an expert appointed by a party individually or by a single joint expert.
    Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.
  14. Will parties be able to recover the costs incurred in pursuing a claim in court?
    The general rule here is that the losing party will pay the winning party’s costs. The Courts of England and Wales do, however, have a wide discretion when it comes to the quantum of the costs awarded.
  15. How long do commercial claims take to be resolved in the courts of England and Wales?
    This is entirely dependent on the facts of the case, the extent of witnesses to be called, the expert evidence required, the capacity of the Courts to deal with the issue at hand.
  16. How can a successful party enforce a court judgment?
    There are several ways by which a money judgment can be enforced against a judgement debtor (unsuccessful party):

    • Writ (or Warrant) of Control – taking control of the judgment debtor’s goods;
    • Third Party Debt Orders – a judgment debtor’s funds held by a third party (e.g. a bank) to be frozen and seized;
    • Charging Orders – a charge over a judgment debtor’s beneficial interest in land, securities or certain other assets;
    • Attachment of Earnings Orders – a judgment debtor’s earnings to be deducted by their employer;
    • Insolvency Proceedings – a judgment creditor can apply to make the judgment debtor bankrupt (if they are individuals) or placed into liquidation (if a company);
    • Appointment of a Receiver – to receive a judgement debtor’s rents, profits and moneys in respect of certain property.
    • Writ of Sequestration – for sequestrators to take control of property.
    • Order of Committal – the judgment debtor to prison for contempt if they do not comply with court orders.
  17. Can an unsuccessful party appeal against a court’s decision?
    An unsuccessful party can make an application (i.e. an appeal) to a higher court to seek to overturn an order (or part of an order) of a lower court or tribunal.
    To begin the appeal process a party would first need to complete an ‘Appellant’s Notice’ to show that their appeal has a reasonable prospect of success and file this with the correct Appeal Court.
  18. How do the courts of England and Wales approach the choice of governing law in a contract in cross-border litigation?
    Where possible, the Courts of England and Wales will seek to give effect to the choice of the contracting parties when it comes to governing law. Following the end of the Brexit transition period, the UK has applied UK Rome I, the retained European Union (“EU”) law version of Rome I. Under UK Rome I, a Court must recognise an express choice of law, except in certain situations where the express choice of law is modified.
  19. Are foreign judgments recognised by the courts of England and Wales?
    Recognition of the judgment is dependent on the country of origin as different regimes govern different judgments.
    Under the UK regime, judgments from Scotland or Northern Ireland can be enforced by obtaining a certificate from the original Court which handed down the judgement and registering the judgment with the High Court.
    The UK acceded to the Hague Convention in its own right following Brexit. The Hague Convention on Choice of Court Agreements requires the UK Courts to recognise and enforce judgments from designated Courts. All EU member states, Mexico, Singapore and Montenegro are bound by the Hague Convention.
    Following Brexit, the UK has also applied to accede to the 2007 Lugano Convention but this application is still pending. If the UK’s accession is approved, judgments from the EU and European Free Trade Association (“EFTA”) will be enforced in accordance with the pre-Brexit rules, which essentially allows the foreign Court to be the judge of its own jurisdiction. A declaration of enforceability (registration in the UK) will be required under the Lugano Convention before enforcement can take place.
    There is also a common law regime in England and Wales which allows for the enforcement of judgements. To be enforceable at common law, a judgment must be for a debt or definite sum of money and be final and conclusive. A foreign judgment is only enforceable under the common law regime if the original Court had jurisdiction according to the rules which English law applies in such cases. At common law a foreign judgment is enforced by bringing a fresh action though can be more restrictive.
  20. How have the courts of England and Wales responded to the Covid-19 pandemic to ensure that the litigation process remains effective while ensuring the health and safety of those involved in the process?
    To date, the majority of Court hearings take place ‘virtually’ via telephone or video conferencing. Court bundles are required to be filed electronically for ‘virtual hearings’ and physical presence is not required.
    Where ‘physical hearings’ in the UK are necessary they take place with certain restrictions such as requiring all users to wear a face covering in public and communal parts of the Court buildings and using screens or barriers to separate people.
ABOUT THE AUTHORS

Niten Chauhan
Partner, Dispute Resolution and Head of Insolvency & Restructuring, JPC

Niten trained in the City of London and qualified in 2006. Prior to becoming a solicitor he worked with a multinational firm of accountants and a global investment bank. This financial experience coupled with a strong legal acumen led him to a career in Commercial Litigation and Dispute Resolution with a particular specialism in Insolvency.

Niten is Head of the firm’s Insolvency and Restructuring department where his particular strengths lie in dealing with corporate insolvency matters from Liquidations to Administrations.

In addition, he is a Partner in the Dispute Resolution department in which he undertakes all aspects of litigious work and acts for a multitude of clients, both foreign and domestic with cases.

Niten also has an expertise in cases of civil fraud particularly involving properties and identity theft. He was the lead Partner in P&P Property Ltd v Owen White & Catlin LLP [2018] EWCA Civ 1082 (15 May 2018), a case of property fraud which was widely publicised after he achieved a successful outcome for his clients before the Court of Appeal in May 2018.

Furthermore, as the firm’s International Partner, Niten acts for clients globally in varying matters from high value contractual disputes to shipping arbitration cases.

Irina Apekisheva
Solicitor, Dispute Resolution, JPC

Irina is a solicitor in JPC’s Dispute Resolution Team, dealing with all aspects of commercial and property litigation, including contract claims, injunctions, intellectual property matters, construction disputes, professional negligence and landlord and tenant disputes.
Following her studies at the University of Law where she gained Distinction in her LPC, she completed her training contract at a top 100 London firm focussing on commercial litigation, property and private client work.

Examples of some of the cases Irina has been involved in are as follows:

  • Successfully defending a construction adjudication matter worth over £1.5m
  • Advising a prominent artist on his intellectual property rights claim
  • Advising a client in respect of a GDPR dispute with a British regulator, the parties reached settlement before trial.
  • Representing a client in respect of defending injunction proceedings, the matter was settled on the terms favourable to the client

Irina understands the importance of resolving clients’ disputes in the most cost-effective way possible and strives to understand their objective at an early stage. She is committed to providing high quality legal advice in a way that is easily understood.

ABOUT THE FIRM

Name: JPC
Address: North London office: Omni House, 252 Belsize Road, London NW6 4BT Central London office: 34 Sumner Place, London SW7 3NT
Telephone: +44 (0) 20 7625 4424
Email: enquiries@jpclaw.co.uk
Website address: https://www.jpclaw.co.uk/
Key contact: Niten Chauhan, Partner, nchauhan@jpclaw.co.uk
Established: 2007
Number of lawyers: 24
Languages: English, French, Gujurati, Russian, Turkish

Brief description:
JPC is a Legal 500 practice which covers the full spectrum of commercial law for businesses and individuals both in the UK and overseas and maintains strong professional relationships through its international networks and continues to develop the same as a result of its growing global presence.

Key practice areas:
Corporate, Dispute Resolution, Insolvency and Restructuring, Employment, Private Client, Real Estate

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