What is commercial litigation and the role of commercial litigation solicitors in London?

While the United States and the United Kingdom (this article focuses on just England and Wales) both have common-law civil justice systems, their particular procedural rules, practice conventions, and public policy pressures (whether current or historical) provide their litigation landscapes major differences.

The U.K. Civil Litigation System

The Civil Procedure Rules 1998 (as amended) has fixed the procedure for civil litigation in the United Kingdom. Their keystone is the superseding objective that all cases must be dealt with impartially and proportionately to the amount of money at stake, the claim’s standing, the complexity of the issues to be decided, and the relative financial positions of the parties.

There is a strong incentive on the timely identification of the concerns in dispute through pre-action correspondence, and the parties are encouraged to resolve their grievances at an early stage without the need for trial. A party may be penalized in costs for unreasonably refusing to engage in settlement discussions, and, at certain stages of the litigation, the parties are required to inform the court if any settlement discussions have taken place or are pending, although the content of any discussions remains confidential between the parties.

While the court typically cannot force the parties to mediate, mediation is commonplace. Court-arranged mediation is available in some low-level disputes, and there is an ongoing debate as to whether mediation should be made a compulsory step in all claims.

Arbitration is also used widely, and London is a leading global center. Just as the United Kingdom’s judges have a reputation for their high quality and independence, so do its commercial litigation solicitors in London who have the ability to deal with the most complex of commercial disputes.

Irrespective of the case type, all litigation involves the similar main procedural stages.

Statements of Case (Pleadings)

The claimant serves written particulars of claim, setting out the facts and law upon which it relies, along with the remedies sought. The defendant serves a defense and counterclaim if it has one. The claimant can serve a reply to the defense and a defense to the counterclaim. In contrast to notice-pleading jurisdictions in the United States, the claimant in England is expected to set out its case in reasonable detail in its pleadings, with reasonable grounds and evidence to plead fraud, before the discovery phase.

Disclosure (Discovery) of Documents

Litigants’ disclosure rights and obligations are not as extensive in the United Kingdom as they are in the United States, where the parties are obliged to make substantial oral and documentary disclosure at the outset of a matter.

The U.K. court will make an initial order for the standard disclosure of documents. A party must carry out a reasonable search for and disclose all documents that are or have been in its control, documents on which it intends to rely, documents that adversely affect its case or that of another party, and documents that support another party’s case. Unlike in the United States, background or “train of enquiry” documents are not disclosable except in exceptional circumstances. A party may make an application for the specific disclosure of documents or classes of documents if necessary. A party may also seek the disclosure of particular documents by a third party, where it can show that it is in the interests of justice to do so.