Litigation in England and Wales
Many legal systems, including America’s, trace their roots to the English courts. And while American law students study English judicial opinions, litigation in England and Wales differs from their counterparts around the world.
To help share details about litigation in England and Wales, I spoke with Lucy Keane, a barrister at 33 Bedford Row in London.
Why should you continue reading this post about litigation in England?
You’ve read my other interviews where I ask lawyers about wearing wigs and you’re finally ready to learn about the jurisdiction that made lawyer wigs famous.
You read my interview with a lawyer from British Columbia and are curious what jurisdiction could be even more British.
You don’t have time to watch all forty-four episodes of the 14-year BBC courtroom drama, Rumpole of the Bailey.
Lucy Keane is a barrister at 33 Bedford Row in London. This interview has been lightly edited.
Background
Can you tell me about the kinds of disputes you handle in your legal practice?
I generally deal with civil and commercial litigation in my practice. The disputes can range from shareholder disputes involving allegations of unfairness from minority shareholders, to commercial contract and supply-chain disputes. I also deal with problems involving real property, recently dealing with a partnership dispute involving an investment property in London.
My passion, though, is international commercial arbitration and I really enjoy being involved in this which I think is a very effective means of cross-border dispute resolution.
What type of clients do you generally represent in disputes?
I normally represent small to medium-sized businesses and individuals, although I have acted for large corporations. I was recently involved in the defence of Volkswagen AG in the group litigation that is currently underway in the High Court in London. Similar to the litigation in the US and throughout the world, this case deals with allegations that Volkswagen breached the limits for diesel emissions by using a so-called “defeat device” in testing of the vehicles. The group litigation is the English equivalent of the U.S. class action.
Speaking of large corporates, I also had the great experience, at a very early stage in my career, of being part of the team representing Occidental Petroleum Inc. in the litigation and arbitration that came about as a result of the Piper Alpha disaster. Piper Alpha was an offshore oil platform, owned by Occidental, that was situated in the North Sea midway between Scotland and Norway. It blew up causing total destruction of the platform and the loss of some 167 lives. Occidental had to defend a number of claims from contractors, relatives of the deceased, and survivors. Many were spread around the world. An innovative settlement mechanism was eventually agreed on and I had the chance to be involved in implementation of that mechanism, essentially by arbitration. There were many aspects of this case that I enjoyed, not least being able to work with Occidental’s U.S. legal team based in Texas.
Besides Microsoft Office, what software do you use in your practice?
As well as Microsoft Office, I use “Lex” which is an online diary and fee system.
What books and websites do you use for legal research?
For legal research, I use Westlaw and Lexis Nexis. They are excellent for quick access to materials such as legislation, reports and books.
I also have access to law libraries provided by the Inns of Court in London (there are four) as well as the Advocates’ Library in Edinburgh, Scotland. I can access a complete range of legal resources in these libraries from text books to law reports covering the UK, EU, U.S. and the UK Commonwealth, such as Canada. The librarians in each of the libraries are always on hand to help and are very knowledgeable. They are also great places to work.
Image credit: https://en.wikipedia.org/wiki/High_Court_of_Justice#/media/File:Royal_Court2.jpg
Are there other legal systems in the UK besides the one that applies in England and Wales?
The UK has two other legal systems, that of Scotland and Northern Ireland. The law of England & Wales only applies in England & Wales. There is no UK legal system as such. The Scottish legal system is quite different to that of England & Wales and of Northern Ireland, in that it is not based on common law principles, rather it is based on Roman law and is similar to the continental European systems. It has adopted certain aspects of the English system and is now a form of “hybrid” civil/common law system. It also has a split profession.
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
Pleadings are currently being filed electronically due to Covid. In normal times, they can be filed electronically (and in certain cases must be) but filing a hard copy manually is still generally required.
Each court has its own link for filing documents. Information about court listings and procedure rules can be found on http://www. justice.gov.uk. HM Courts & Tribunals Service is a government service responsible for the administration of courts and tribunals in England & Wales. It can be found on www.gov.uk.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
It depends upon the facts and issues of a case. The page lengths may differ from 10 to 50 pages, or sometimes even more.
Complaints or initial proceedings are not available online for the general public to view. But the interim and/or final orders in cases are updated on the Court’s website from time to time.
Generally speaking, how long does it take for a case to go from complaint to judgment?
It can take years for a case to go from complaint to judgment but, again, this varies depending on the factors I mentioned that may make a complaint longer or shorter.
The bulk of civil cases in England & Wales are dealt with in the County Court. More complex cases and specialist cases are heard in the High Court of Justice. Cases are generally allocated to a track depending on those factors, especially the sum sued for. The tracks are small claims, fast track and multi-track. A small claims track claim will conclude fairly quickly, as will a fast track. Judges are fairly proactive in case management and engage with litigation from an early stage in order to prevent unnecessary delays.
Do England and Wales have specialized courts that only hear commercial cases?
England & Wales does have specialist courts that deal with commercial matters. These courts all sit within the High Court of Justice. They are:
The Business and Property Courts, situated in London and several provincial cities.
The Technology and Construction Court which deals with technically complex matters, with particular emphasis on construction. It sits in London and provincial centres.
The Commercial Court (and Circuit Commercial Courts).
The Admiralty Court, which deals with shipping matters. It sits in London.
The Companies Court, which sits in London and hears applications under UK companies’ legislation.
The Patents Court and the Intellectual Property Enterprise Court, based in London.
The Administrative Court hears applications for judicial review of administrative actions, namely cases where it is alleged that a public authority such as a central government or local government department or officer has gone beyond its powers and acted ultra vires.
The Planning Court hears judicial reviews and statutory challenges relating to planning and similar matters.
Who decides the facts in a commercial case? Is it a judge or a jury?
In a commercial case, it is the judge alone who decides the case.
Generally speaking, how is evidence exchanged between the parties before trial?
In England & Wales, evidence is exchanged pre-trial by means of disclosure. This means that each party discloses to the other side the documents on which it relies and documents adversely affecting that party and supporting the other side.
A party can seek disclosure of documents from the other party, although the other party is supposed to disclose documents both for and against its case anyway. The parties exchange lists of documents identifying all documents that support or adversely affect their claim and also assert privilege where necessary. The other party is allowed to inspect the non-privileged documents.
There is a risk that the other party will not comply. Sanctions can be an “unless order,” which effectively means that unless the party complies with the disclosure order, certain sanctions will apply. An application can also be made for "specific disclosure" which relates to specific documents that the other side wants to see. A party making disclosure must sign a "disclosure statement" certifying that it has complied with its obligations under the disclosure order.
Do you get to interview the opposing witnesses before the trial?
There is no deposition in England unlike in the U.S. So witness statements are exchanged and these form the basis of examination in chief (or direct examination).
If you win, does the other side reimburse your attorneys’ fees?
England does follow the “English Rule” when it comes to costs. This means that the successful party is awarded costs against the unsuccessful party (it used to be said that costs “follow the event” ie success). This is unlike the U.S. system, where each party bears its own costs, regardless of success.
The policy reason for this rule in England seems to be to discourage unnecessary litigation. The policy in the U.S., on the other hand, is that a citizen has a right to litigate and should not be discouraged from doing so for fear of an adverse costs order. Who is right, I wonder?
Although costs do follow success in England, the award of costs remains at the discretion of the court. In a straightforward case, fixed costs are usually awarded. In practice, this means that the costs awarded are unlikely to cover all aspects of the client’s expenses. In a more complex case, costs will be assessed at the end of the case, with the court considering what is reasonable and proportionate in the circumstances. Again, it is unlikely that court costs will cover all of the expenses the client has actually incurred.
Are English and Welsh courts open to the public? Can ordinary people watch a commercial trial?
Courts in England & Wales are open to the public and people can watch a commercial trial. The only time the public may not be admitted to a court is when the court orders the doors to be closed in a sensitive matter, most likely a criminal trial.
Do you believe that English and Welsh courts have a particular strength for resolving commercial disputes? How about a weakness?
English law and the English courts (especially in London) have established themselves internationally as a “go-to” jurisdiction for the resolution of commercial disputes. A well-established and recognised common law legal system and modern and effective rules of procedure make for an efficient and transparent court process. The English judiciary is also highly competent and recognised for its quality and commitment to the rule of law.
The specialist commercial courts that I have listed are an essential part of the focused and responsive approach of the English court system which aims to meet the needs of business both in England & Wales and internationally. There are many cases heard in the commercial courts that have an international dimension, often with parties from different countries.
London is also the major world centre for international commercial arbitration and this would not be the case if it were not for the quality of the practitioners who specialise in this field and for the strengths of the English courts and judges who apply English law in support of international arbitration. England & Wales therefore offers very strong capabilities in the resolution of commercial disputes.
On the downside, it is fair to say that the courts in England & Wales have been seriously underfunded in the last decade or so by the UK government. Budget cuts have led to court closures and a lack of investment in court infrastructure and the public funding necessary to support the legal system and the profession is concerning. This needs to change.
How often do you go to the courthouse?
I regularly go to the courthouse, although I do hearings remotely just now due to the Covid restrictions. I think doing hearings remotely works well and I suspect that much of the more formal court hearings involving submissions, rather than taking witnesses, will continue like this post-Covid.
When you are there, do you need to wear a special robe or wig?
When I am in court, I wear a wig and gown. It is only barristers in England & Wales who wear a wig. Solicitors do appear in court, but they will wear the gown only. The legal profession in England is split between barristers and solicitors. Barristers are instructed by solicitors and do the advocacy, draft pleadings and advise on questions of law. Solicitors deal directly with the client, file court papers, prepare court bundles and deal with the client’s affairs in a more general manner. So, this is different to the U.S., for example, where an attorney at law deals with all of this.