Dispute Resolution Guide 

What does a dispute resolution lawyer do?

Dispute resolution (DR) solicitors can practice general law or focus on a specific area of the law, including banking litigation or energy issues.

When attempting to settle a disagreement, a DR attorney will act on behalf of and represent their client(s). The amount of work involved in handling dispute resolution cases can vary significantly based several variables, including the parties involved (individuals, partnerships, international corporations, etc.), the nature of the dispute (trust or engineering disputes, for example), whether the case involves emerging legal fields, the court hearing the matter, and whether cross-border issues are present.

The underlying nature of the claim, the numerous procedural phases that may be faced during litigation, and the various alternative dispute resolution (ADR) processes must all be understood by the DR lawyer while handling disputes.

If the dispute cannot be resolved through negotiation or alternative dispute resolution (ADR), a DR lawyer will be expected to advise their client(s) and manage their expectations regarding whether they have a valid claim (if they are the potential claimant) or defence (if they are the potential defendant) in any potential proceedings. If necessary, the lawyer will also be expected to bring or defend proceedings on behalf of their client. Although they frequently give the go-ahead to a barrister to represent their client in court, DR attorneys may also be obliged to appear in person for their clients.

It’s important to recognise that not all parties are represented by legal counsel; those who aren’t are referred to as claimant litigants in person or defendant litigants in person. When one of the parties to the disagreement with your client is an in-person litigant, there are additional factors to consider.

What is dispute resolution?

The term “dispute resolution” (DR) is used as a catch-all to refer to the various processes used to settle disagreements in civil court proceedings. Among the several terms included in this:

  • Civil litigation is the primary means of resolving conflicts. In a legal dispute involving two or more parties, the court decides whether to award damages or seek alternative remedies on behalf of one of the parties. This needs to be compared to criminal cases.
  • Alternative Dispute Resolution (ADR) encompasses diverse methods of resolving disputes outside the legal system or serving as a supplement to the legal process. Expert determination, mediation, arbitration, and early neutral appraisal are a few examples. These could be required or optional based on the parties’ agreements or specific court regulations. See the ADR below for more details.

DR can be roughly separated into two components:

  • The fundamental characteristics of the particular dispute – basically, the kind of disagreement between the parties and the substantive law that will have to be used to resolve it, such as a contract, tort, misrepresentation, safeguarding private information, professional negligence, etc.
  • The process and method used to settle the disagreement.

Practice and procedure

The Civil Procedure Rules 1998 (CPR) as amended

The CPR is divided into parts that address different aspects of technique and protocol. For example, Part 58 comprises provisions exclusive to the Commercial Court, while Part 6 addresses matters of service. The CPR Committee, an advising non-departmental public organisation, is responsible for maintaining and changing the CPR regulations and practice guidelines. Every year, there are two main updates – in April and October – and numerous smaller updates throughout the year. According to CPR 1, the “overriding objective” of the CPR is to allow the court to handle matters “justly and at proportionate cost.” This includes:

  • Ensuring that the parties are on an equal footing.
  • Saving expense.
  • 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
  • Ensuring that cases are dealt with expeditiously and fairly.
  • Allotting to each case an appropriate share of the court’s resources while taking into account the need to allot resources to other cases.
  • Enforcing compliance with the CPR and orders of the court.

At every level of the litigation process, the court and the parties involved should consider these variables. Should a party disregard the CPR or a court order, the defaulting party may face penalties from the court.

CPR practice directions

The CPR Parts are supplemented with practice instructions. Each part may include one or more Practice Directions that offer instructions on how to apply the rules within a particular Part. Practice Direction 16, which addresses case statements, is one example. This is frequently shortened to CPR PD 16. The CPR Committee updates the Practice Directions, much like the CPR.

Practice notes, guidance notes, and practice directions are examples of judicial guidance.

The courts may address particular procedural or practice-related matters in a stand-alone document. These could take any of the following shapes:

  • Guidelines notes: the Administrative Court has released guidelines notes on how to apply for judicial review.
  • Practise directions: these directions address a particular stand-alone issue and are not an addition to CPR. As an illustration, consider Directions for Practice: Disqualification of Directors Procedures and Guidelines for Practice: Reference to Sources (2012).
  • Practice notes: these can address a particular topic or cover the procedures used in a particular court, adding to the court guidelines. Practice Note: The Electronic Working Pilot Scheme and Practice Note: Fixed-end trials are two examples.

Court guides

In addition to offering useful advice and information to be used in conjunction with the CPR to guarantee the efficient administration of cases in those courts, the court guides aim to give a broad description of the functions and procedures of the various courts. The guides explain how the rules and Practice Directions are applied in certain courts rather than as a replacement for the CPR. Although the guidelines are not legally binding or in the position of a practice direction, parties are expected to abide by them, and noncompliance may affect how the court uses its authority under the CPR, including the ability to impose adverse cost orders.

Rules of the Privy Council and the Supreme Court

The rules of practice and procedure outlined in the aforementioned sources do not apply to proceedings in the Supreme Court or the Privy Council. Instead, they are bound by their own rules:

  • Supreme Court Rules 2009
  • Judicial Committee (Appellate Jurisdiction) Rules 2009

Various stages of civil litigation

Pre-action steps and considerations 

The parties typically conduct pre-action correspondence before proceedings start; in many circumstances, pre-action protocols mandate that the parties take this step. In addition to the Practice Direction Pre-Action Conduct and Protocols, which are broader, there are also specialised pre-action protocols. These are outlined in the CPR, and the practice direction and protocols specify the behaviour the parties must follow before the proceedings are issued. Noncompliance may result in negative financial implications for the parties.

The parties will need to take a lot of things into consideration, whether or not procedures apply. Examples are provided below, albeit these will vary based on the particulars of each case.

These could be any of the following for the claimant:

  • Identifying the intended defendant (e.g. individual, company).
  • Evaluating the merits of the claim (e.g., is the defendant bankrupt or insolvent).
  • Finding the defendant’s assets and determining how to enforce against them (e.g., property in foreign jurisdictions).
  • Figuring out whether emergency measures (such as stopping the transfer of assets) are necessary.
  • Assessing the need for additional pre-action procedures (such as filing a request for pre-action disclosure to get documents from the potential defendant or another party that are required in order to properly prepare the claim).

In the case of the defendant, these may include:

  • Choosing whether to dispute the claim.
  • Deciding whether to pursue an offset or counterclaim.
  • Being conscious of the possible financial repercussions of admitting liability before taking legal action.
  • Figuring out whether the claimant has the financial resources to cover losses.

For both sides, this could consist of:

  • Whether the claim is subject to a limitation period, which could result in the claim being statute barred, will depend on the nature of the claim. A limitation period, as defined by the Limitation Act of 1980, is the amount of time a claimant has to file a lawsuit against a defendant.
  • How much the claim will cost, and how will the lawsuit be paid for both during the case and after it is resolved?
  • Whether the claim should involve any further interested parties.
  • The case management deadlines relevant to the litigation: the CPR imposes stringent deadlines on all parties involved in the lawsuit to guarantee that the claim is handled correctly. Should you not comply, there could be consequences.
  • If a Part 36 offer of settlement offer should be made before filing a lawsuit, the other party may incur expenses if they choose not to accept it.
  • If an existing ADR or arbitration clause obligates the parties in a contract, and/or whether ADR or arbitration would be a suitable means of resolving the dispute.

Cross border considerations

Cases involving cross-border features, such as a defendant’s residency in another country or a contract stating that the issue would be resolved by applying a foreign law, may be handled in the courts of England and Wales. Since they may affect whether the English courts have jurisdiction to resolve the dispute and, if they do, how the litigation is carried out, it is crucial to be aware of the kinds of issues that may arise in these situations and how the parties and/or the courts may address them. The various considerations to take into account prior to taking action are:

  • Applicable law – in some cases, the law to be applied by the courts will be set out in a contract; in other cases, it will need to be determined by the courts. Different applicable law regimes are applied by the courts to determine the applicable law in a contract and in a non-contractual dispute. These regimes have changed over time, and therefore, the date on which the contract was entered into, or the date of the harmful event (in a tort claim) will be important in determining the relevant regime to be applied. Several other factors come into play when foreign law is to be applied by the courts, one of which is whether foreign law testimony from an expert will be necessary.
  • Jurisdiction: To resolve the parties’ disagreement, the English courts must have jurisdiction. This could be outlined in a jurisdiction agreement, in which case the Hague Convention on Choice of Court Agreements’ requirements for compliance with international law might apply. Alternatively, it could be decided by applying common law principles, which in English courts determine if they have jurisdiction when determining whether the claimant is allowed to serve the claim form outside the jurisdiction. Be aware that a defendant may attempt to contest the court’s jurisdiction; this can be a costly and drawn-out process. As a result, it is crucial to analyse this matter before taking action.
  • Cross-border service: In cases where the defendant is located outside of England and Wales, it is crucial to ascertain whether the court will need to grant permission to serve, whether there will likely be challenges in serving the claim form and whether the claim form cannot be served promptly due to the likelihood of delays. These matters are manageable, but they may affect the costs associated with serving the defendant and the time it may take for the defendant to be legally taken into custody so that the proceedings may start.
  • Cross-border evidence: When handling evidence and disclosure in cross-border procedures, several questions and concerns may arise. The control of documents outside of England and Wales, data protection concerns, managing the expectations of a foreign client, managing the impact of local laws in the jurisdiction in which the documents are located, disclosure requirements regarding foreign language documents – including whether translations are required – and whether the documents and their translations are subject to privilege are a few of these.
  • Cross-border enforcement: Although enforcement takes place upon the acquisition of a judgement, it is crucial to consider the concerns related to cross-border enforcement prior to taking any action. Possible enforcement challenges could increase the process’s expenses or make it financially impossible to proceed.

Adding claims or parties and initiating or replying to a claim

The parties will present their positions in documents known as “statements of case” (often known by their former term, “pleadings”) while launching and defending a claim. These are the primary legal documents outlining the parties’ positions before the court.

Starting a claim

The claimant must decide which court to file the claim in, which will rely on several variables, such as the claim’s type and value, and occasionally, the parties’ locations.

The intended claimant must draft a claim form and particulars of claim outlining the specifics of their claim and what they are hoping to obtain from the intended defendant before filing a claim:

  • Claim form: this needs to include a brief description of the claim, the remedy (such as damages or an injunction), and information about any interest being claimed. It must be served on the intended defendant within a certain amount of time once it is issued in court and a fee is paid.
  • Particulars of claim: these describe in further detail what the claimant is claiming and are often stated in a separate document. However, they can be included in the claim form as well. Within a certain time, the claimant must serve the defendant with the claim details and submit a copy to the court.

Serving the claim form and particulars of the claim

The claimant is responsible for ensuring the defendant(s) receives service of the claim form and particulars of the claim. Once it is issued, the claim form has limited validity and needs to be served within that window of time. There are several options accessible to the claimant if service is onerous, such as requesting an extension of the service period. The CPR has several requirements for serving the claim form, including procedures for serving in England and Wales and other countries.

There are many things to consider in the complex area of service.

When the claimant serves its particulars of claim in most Business and Property Court cases, it also needs to serve its Initial Disclosure. This includes the important records that the party used to bolster its claim, giving the defendants a clear understanding of the evidence they must present.

Acknowledging the claim form

Following service of the claim form, the defendant has a brief window of opportunity to acknowledge receipt of the document. This is accomplished through an Acknowledgment of Service form, which gives information about the defendant to the court and the claimant, including whether the defendant plans to oppose the court’s jurisdiction to handle the claim or defend all or part of it.

Responding to a claim or counterclaim

There is no need to address the claim further if the defendant has acknowledged it in its entirety in the acknowledgement of service.

In responding to the claim, a defendant:

  • Must submit a reply to the claim if they contest all or a portion of it. The defence must address each allegation in the claim’s particulars and specify which sections the defendant disputes, concedes, or asks the claimant to substantiate. All other parties involved in the proceedings must get a copy of the defence, which must also be submitted to the court. It should be noted that the defendant’s Initial Disclosure, the primary papers it uses to support its defence, must be filed, and served simultaneously for most claims in the Business and Property Courts.
  • May submit a counterclaim, a claim made against the claimant in the proceedings; sometimes, a defendant needs the court’s approval before filing a counterclaim.

Following receipt of the defendant’s documentation, the claimant may file a:

  • Respond to the defence; if the claimant chooses not to do so, this will not be seen as a defence admission. On the other hand, it seems sensible for the claimant to file a reply outlining their version of events if the defence raises new points. It will be necessary to submit the response to the court.
  • Defence to counterclaim: If the defendant files a counterclaim, the claimant has the option to accept or reject the claims made there, in whole or in part. Keep in mind that the defendant may receive judgment in default if the claimant fails to reply to the defendant’s counterclaim.

The defendant may file a reply to the claimant’s defence of the counterclaim if the claimant files one.

Additional claims

The defendant’s options include:

  • Asign a further claim against a different defendant or a third party not currently involved in the proceedings; in some cases, the defendant must first obtain the court’s approval to assert a further claim.
  • Seek an indemnity for the whole amount they are obligated to pay or a contribution from a third party for all or part of the amount they are responsible for paying.

Clarification of claims

In cases where this is required to help them prepare their own case or comprehend the case, they must meet, the claimant(s) and defendant(s) may ask for more information or clarification regarding a statement of the case that has been delivered to them. The requests are referred to as Part 18 requests.

Statements of truth

A declaration of truth, which attests to the veracity of the statement’s author’s sincere belief in the document’s truthfulness, is required for all case statements as well as certain other court documents, such as witness statements and expert reports.

The statement of case may be struck out by the court or, alternatively, the party may not be able to rely on it as evidence if the items set forth in it if a party refuses to sign a declaration of truth or does not honestly believe that the document is accurate.

A false statement may occasionally serve as the basis for a party to file a motion for contempt of court, which could lead to the statement’s author being sent to jail.

Fees

Litigation through HM Courts & Tribunals Service is not fee-free. The Civil Proceedings Fees Order, SI 2008/1053, Sch 1 contains the majority of the court fees for civil matters. It is adjusted whenever any court fees in Schedule 1 are modified.

Certain expenses related to civil processes are outlined in other laws, such as:

  • Supreme Court fees.
  • Fees for affidavit affirmation and swearing.

The court may stay the claim (stop the claim) until the proper fee is paid if an improper court fee is paid, which is brought to the court’s attention. Paying the wrong court fee could have additional repercussions, particularly if it is discovered after the statute of limitations has passed.

Hearings, interim applications, and case management

The court’s goal during proceedings is to ensure that cases are handled fairly and within a reasonable budget, which is in line with the primary goal (CPR 1). To do this, the court has broad jurisdiction over handling cases.

To achieve this goal, strict deadlines are enforced for all phases of litigation, including the filing of case statements, disclosure, witness and expert report exchanges, and so on. Typically, a court order or the CPR specify these deadlines. It is crucial to remember that:

  • If these dates are missed, the defaulting party may face severe penalties, such as cost implications and/or the dismissal of their statement of claim (such as the claim form or defence).
  • When a party needs additional time to fulfil their responsibilities, the court may grant extensions for specific dates, some of which may be mutually agreed upon. Requests for this kind of time extension must be submitted as soon as possible.

Allocation to a specific track

Every set of court hearings will be assigned to a particular track. Once a defence has been lodged, the court will assign the claim to the most appropriate track, starting with a provisional allocation. This allocation is significant because it will dictate which cost regime will be used and how the court will handle the claim moving forward. For civil claims, there are four tracks, and the best one will rely on a variety of elements, such as the claim’s value:

  • Small claims track: typically, claims up to £10,000. However, there are various financial caps for certain claims, such as personal injury claims.
  • Fast track: usually claims totalling more than £10,000 but under £25,000.
  • Intermediate track: typically used for claims worth between £25,000 and £100,000 that are not eligible for the small claims track or fast track.
  • Multi-track refers to any claim valued at more than £100,000 and specific specialised circumstances for which the small, quick, or intermediate track is not the standard route.

The parties must fill out a “directions questionnaire,” which includes specifics about their claim or defence after the court has provisionally assigned the claim to a track. The court uses this information to verify the appropriate track and determine how the claim will be handled moving forward.

Applications

Before the trial, the parties may file several applications with the court during the proceedings. These can handle a number of things, like asking for the addition of another expert or extending a date specified in court orders. The application’s goal is to ask the court to issue an order that specifies what each party must do. The kinds of applications submitted differ greatly. Thus it’s crucial to think about whether:

  • The parties can use a consent order to agree on the strategy.
  • The other parties must be notified of the application, or it may be possible to use an application without notice, for example, to request an injunction.
  • Will a hearing be necessary, or can it be completed on the documents?
  • At the same time, a request for release from sanctions must be lodged.

If the court issues the desired order, it must be sent to the other parties, who must then abide by it or face consequences for their failure to do so unless a request for relief from sanctions is made and granted.

Injunctions

An equitable remedy that the courts employ to prevent injustice in a number of situations is an injunction. Injunctions may consist of:

  • Prohibitory: they are orders that forbid a party from acting in a certain way.
  • Mandatory: These are orders that are issued to force a party to do something.

An injunction of any kind may be granted temporarily or permanently.

Injunctions can be of the following types:

  • A freezing injunction, also known as a Mareva injunction, is a temporary measure prohibiting a party from handling or selling any or all its assets until a judgment is achieved and upheld.
  • Search orders, formerly Anton Piller orders, are an extraordinarily intrusive remedy that allows a party to enter the defendant’s property to look for and take evidence that the defendant could otherwise delete or hide. The courts have them as one of their “nuclear options.”
  • Imaging orders: these call for a party’s prompt and effective access to an independent computer specialist so that the specialist can copy data storage devices (like PCs) and/or online accounts (like email accounts). When there is a chance that evidence may be destroyed, the main goal of such an order is to protect it.
  • When a claim is made for wrongful interference with goods, interim delivery of orders and property preservation orders may be sought.

It is customary for a party seeking an injunction or other order from the court to notify the other party of the application. However, in certain situations where confidentiality is required or the matter is urgent, it may be possible to request an injunction without notifying the other party.

Stages in the litigation process: disclosure and evidence

The disclosure phase and the evidence (factual and expert) phase are two stages in litigation that can take a long time. To present witness statements and expert testimony in support of their case, the parties will need the court’s approval, which they almost certainly will grant.

Disclosure

The process wherein parties provide the other party with “documents” under their “control” relevant to the issues under dispute is known as disclosure. In this context, “documents” and “control” have exact meanings. The term “document” has a very broad definition that encompasses electronic documents such as voicemails, SMS, emails, video files, etc. Even when a party does not physically hold a document, they may nevertheless be considered to have “control” over it if they are granted the ability to view or copy it.

The parties will need to identify and preserve any documents that could need to be disclosed to the other party early in the proceedings and, in some cases, even before the procedures begin. Additionally, because these documents might need to be revealed later, parties should take care not to produce any that could harm their case.

Parties should exercise caution while preparing their statements of case, as the opposing parties may have the right to see cited documents.

Not every document that is ‘disclosed’ will be available for inspection by the opposing party. Documents that are “legally privileged” are shielded from public view. A unique safeguard known as privilege is intended to maintain the privacy of some – but not all – of the exchanges between a client’s solicitors and other parties. Parties should be conscious of the possible adverse effects of losing or waiving this protection, as well as how easily it can be done. The difference between privileged and plainly secret communications, and how they are handled differently in the context of civil litigation should also be known to the parties.

The serving of that party’s Initial Disclosure occurs concurrently with the serving of a statement of the case which may include particulars of a claim, a defence, or a reply concerning most claims filed in the Business and Property Courts. This includes the essential papers that the party has used to bolster its assertion, defence, or response, allowing the recipients to understand the argument they need to make for additional details regarding the disclosure programme administered by the Business and Property Courts.

Factual witness evidence

The parties typically present their factual evidence at trial through witness statements and the witnesses’ oral testimony.

Finding persons who can provide factual testimony about the circumstances leading up to the conflict will be crucial. In most cases, the parties will trade witness statements outlining the testimony each witness plans to provide during the trial on pertinent points of contention.

The testimony of the witness must be provided in their own words, and they must sign a declaration of truth. As previously said, signing a declaration of truth without genuinely believing it to be true could have repercussions.

Witnesses should be advised that they might be subject to cross-examination during the trial and that they might need to be available to testify.

Expert evidence

The testimony of expert witnesses is utilised in court to aid in understanding specialised and/or technical topics. Expert testimony can only be used with the court’s approval and is typically limited to specific subject areas or designated experts. The court may mandate one expert to handle such evidence in certain situations. Still, it may also allow the parties to designate separate experts in the same field in other situations.

The expert’s primary obligation is to the court rather than the client covering their fees or the lawyer directing them. Usually, the expert will provide a written report outlining their evidence. If both sides have hired experts, these reports will be shared with the opposing side so that everyone is aware of the expert testimony being used.

Occasionally, the court will call a meeting of the experts. Afterward, they will have to draft a joint statement outlining the points of agreement and disagreement and a brief explanation of their disagreements.

Cross-border disclosure and evidence

When it comes to evidence and disclosure in cross-border procedures, there are several factors to consider. The control of documents outside of England and Wales, data protection concerns, managing the expectations of a foreign client, managing the impact of local laws in the jurisdiction in which the documents are located, disclosure requirements regarding foreign language documents – including whether translations are required – and whether the documents and their translations are subject to privilege are a few of these.

Claim termination before trial

Other than going to trial, several other ways exist to resolve a claim. Among them are:

  • Admissions: If a party acknowledges all the allegations, the claim will terminate.
  • Default judgment: The claimant may seek default judgment, which could result in a judgment being rendered in the claimant’s favour if the defendant does not participate in the proceedings by failing to file a defence or an acknowledgement of service of the claim. If a claimant does not serve a counterclaim defence, the defendant may likewise apply default judgment on its counterclaim. The party with a judgment entered against them may, under certain conditions, petition the court to revoke the judgment.
  • Discontinuance: A claimant may end all or a portion of the legal actions it has started; however, doing so occasionally calls for the court’s approval. In most cases, a claimant must cover all the opposing party’s expenses if they withdraw their claim.
  • Settlement: To agree on a claim compromise without going to trial, the parties may engage in settlement talks. The parties’ solicitors may handle this, or a third party may help through alternative dispute resolution (ADR) techniques, including mediation. The court encourages settlement, and the parties may want to request a stay of the action so that they can continue their negotiations. Additionally, under the CPR, parties may make “Part 36 offers,” which are a particular kind of offer with specific economic implications if the opposing party rejects the offer but doesn’t perform better at trial.
  • The court has the authority to set aside the claim form or to stay the proceedings in cases where it has found that it lacks jurisdiction, such as when the defendant successfully challenges the court’s jurisdiction.
  • Strike out: Either party’s statement of case may be rejected by the court, which will typically result in the termination of the claim. In certain situations, such as where there has been non-compliance with the CPR or a court order or when the claim or defence lacks substance, the court will take this action.
  • Summary judgment: Should an application for summary judgment be granted by the court, the matter will be decided without a trial. A defendant or a claimant may file an application for summary judgment.
  • The court will grant summary judgment if there is no realistic chance that the claim or defence will win and no other strong reason why the matter should be resolved through trial.

When one of the parties becomes bankrupt, it may affect the proceedings since an insolvent defendant is unlikely to be able to pay any judgment or award, even if the claim is sustained and successful. In such cases, it should be considered whether it is reasonable to carry on with the proceedings.

Trial and trial preparation

Trial preparation

It can be rather hectic in the run-up to a trial, so it’s critical to be aware of any pre-trial proceedings you might need to attend and the many documents the parties might need to submit.

The parties may be required to appear in court for a “pre-trial review” by the court. This gives the court the opportunity to assess the case’s level of preparation, resolve any pending procedural issues before trial, and establish a trial schedule.

The parties may be required to prepare specific documents in advance of the trial, such as:

  • A timeline detailing the incidents leading up to the conflict known as a chronology of events.
  • A summary of the case, outlining the matters in issue.
  • A skeleton argument that summarises the points each party will make throughout the trial.
  • Bundles including all the documents that could be used as evidence in court (called “trial bundles”).

Trial

The parties will probably have legal representation during the trial. Following an opening statement from each party’s attorney, factual and expert witnesses will present their cases. After that, counsel will have one more chance to submit their case before a decision is made.

Unless the court has decided otherwise, such as in the case of national security or confidentiality, the trial is often conducted in public.

After the trial

If a trial is necessary, the court will render a decision following the trial. Decisions may be made during the hearing or may be withheld and made available at a later time. Two days before the judgment being rendered, a private copy of the reserved judgment is distributed to the parties. This gives you time, for instance, to attempt and work out any orders that may follow with the other parties.

Orders or judgements that demand money to be paid but do not specify when, must be paid within 14 days.

Enforcement of court judgments and orders

Early on in a matter, enforcement must be taken into consideration as it may determine who the target of a claim is, where it is filed, and what is claimed.

If the defendant disobeys a judgment or order issued by the court, additional measures will need to be taken to enforce the order because the court will not automatically enforce the judgment once it has been obtained.

The key to successfully enforcing a judgment is selecting the most effective enforcement mechanism among the various options available. This will vary based on the type of judgment, the judgment debtor’s (the party against whom the judgment has been obtained) identity, and the kind, quantity, and location of that party’s or business’s assets. The judgment creditor is the one making the enforcement request.

Some of the more popular techniques for enforcement are as follows:

  • Charge order: This kind of order may be applied to the judgment debtor’s possessions, such as shares or a home. It is a way to secure the judgment debt against a valued asset in cases where the judgment debtor lacks the immediate funds to pay off the debt; it does not, by itself, generate money to satisfy the judgment debt. A court order for sale must then be obtained to release the funds.
  • Third-party debt order: this allows the court to enforce the judgment debt against money owed by the judgment debtor to a third-party, usually a bank. In essence, the order directs the third-party to pay the judgment creditor with the money it holds that is owed to the judgment debtor.
  • Assuming possession of the debtor’s belongings, selling them, and using the money to pay off the loan.
  • Attachment of Earnings Order: This is an order to the employer of a judgment debtor directing them to pay a certain percentage of the judgment debtor’s income to the judgment creditor as payment for the judgment debt.

It is also possible to request an “information hearing,” where the judgment debtor will be required to provide information regarding the location and value of their assets if additional details about the judgment debtor’s assets are needed to determine the best course of enforcement.

Cross-border enforcement

When it comes to cross-border enforcement, several factors need to be taken into account. For instance, the procedure for enforcing the judgment and any costs orders must be considered if the judgment debtor’s assets are located abroad. Depending on where the assets are located, this will change. Alternatively, one could go to England to have a foreign judgment enforced.

Appeals

The losing party may want to appeal the court’s decision after it has been made. An appeal will only be permitted if the appellate court determines that a significant procedural error or other irregularity in the lower court’s processes rendered the decision of the lower court incorrect or unfair. If the appeal court determines enough reasonable justifications, it may also decide to vary or set aside the lower court’s ruling by consent.

An appeal typically needs the court’s authorisation, and there are strict deadlines for requesting permission to appeal.

A party wishing to appeal will typically also request a stay of the judgment until the appeal is resolved, as neither the filing of an appeal nor the approval to file one impacts the judgment’s enforcement.

Funding for litigation and legal costs

Litigation funding

Litigation funding is the term used for the funding that parties may seek to help them pay for the costs associated with litigation, as it can be an expensive procedure. Funding may be obtained via:

  • A retainer-based contract between the parties’ legal representatives. This could be recorded using a:
  • Conditional Fee Agreement (CFA).
  • Damages Based Agreement (DBA).
  • A contract with a third-party, usually a commercial litigation funder; the financing is recorded in a commercial litigation funding agreement between the client, the solicitor, and the third-party funder.
  • Litigation costs insurance (LEI) is another name for costs insurance. This type of insurance shields the policyholder from the possibility of a lawsuit resulting in an unfavourable costs award. Before the event insurance (BTE insurance) and after the event insurance (ATE insurance) are the two primary forms.

Litigation costs

Since the topic of costs arises frequently throughout legal proceedings, it must be taken into account at every turn. For customers, one of the most important factors will be whether they can get other parties involved in the action to reimburse them for the fees they have already paid.

There are numerous factors to take into account when thinking about the cost issue. The parties involved, and the particulars of the case will determine whether they are pertinent to the proceedings. In brief, the various concerns are:

  • Pre-action expenses: Expenses incurred before filing a lawsuit could be reimbursed.
  • Security for costs: A security for costs order is a temporary measure used by the courts to allay the defendant’s fears that they won’t get their legal expenses back from the claimant. The court cannot issue such an order unless certain requirements are satisfied. Once issued, a security for costs order prevents the claimant from pursuing the case unless it pays money into court or produces another type of security. Though there is no time restriction on when they may be sought, these orders are typically requested in the early phases of the legal process.
  • Fixed costs: The extended fixed recoverable costs regime may apply to some procedures and/or stages within the proceedings. The winning party pays the losing party’s costs, according to the general principles of cost recovery; however, the amounts will be set in line with CPR 45. A party is not permitted to pursue reimbursement for expenses beyond what is specified in the extended fixed costs regime.
  • Cost management: The courts have the authority to control the costs of the proceedings based on several variables. Parties, in such instances, except litigants in person, must submit cost budgets outlining their actual and expected costs for the proceedings. The costs budget does not restrict the amount of money a party spends on the proceedings; instead, it essentially caps the expenses that a victorious party can recoup from the losing party. After taking into account each other’s cost budgets, the parties will have to try to agree on each other’s expenses. Any agreement – or disagreement – must be documented in the costs budget discussion reports. Generally, a costs management order is issued by the court.
  • Application costs: After the interim hearing, the court may decide the application costs in cases where a court application is heard during the proceedings, such as when one requests the specific disclosure of documents. This phase of cost determination is referred to as “summary assessment.” Courts also utilise summary assessment to calculate costs after a trial that lasts less than a day.
  • Costs after settlement: Should the parties settle, the settlement agreement may cover the matter’s costs; if not, the parties may request that the court determine the costs.
  • Costs after trial: the losing party is normally required to reimburse the winning party’s expenses, but the court may decide to impose a different order (see Practice Note: Cost orders: the court’s discretion and the general rule). The court will take into account every aspect of the case when determining what order to issue. Cost orders can be made in a variety of ways, but they will all specify when payment is due. In most cases, the costs order stipulates that the court will impose costs if the parties disagree. Provisional assessment is a step in the process of doing a full evaluation, which is how this is accomplished.
  • Cost assessment: When costs are evaluated, they are typically done so on a “standard basis,” meaning that the paying party is always in the clear. In cases when the paying party has acted in an unreasonable or improper manner generally, costs are paid on an “indemnity basis,” meaning that the receiving party always wins in cases of question. The amount of assessed costs in cases governed by cost management is often restricted to the amount specified in the expense budget.

Alternative Dispute Resolution [ADR]

Although negotiated dispute resolution (NDR) is referred to in the Commercial Court Guide and the Circuit Commercial Court Guide, the term alternative dispute resolution (ADR) is commonly used.

An ongoing topic since the Civil Procedure Rules were first introduced in 1998 has been how to promote the use of ADR. It is believed that far too many parties are taking their disagreements to court when a judge’s ruling might not be the best one for them, especially when it comes to matters of money, time, and ongoing relationships.

Because of this, alternative dispute resolution (ADR) has been a crucial component of the English civil court system. In 2022 and 2023, consultations on this topic led to the requirement of mediation for a large number of civil claims. Furthermore, the judicial authorities stipulate that if appropriate and does not negatively impact the claimant’s fundamental right to a court hearing, the court may require the parties to participate in alternative dispute resolution (ADR).

It is always crucial to think about the best kind of alternative dispute resolution (ADR) procedure, and in certain situations, a combination of them could work best.

In the event that a dispute arises regarding the contract, the parties are contractually obliged to use alternative dispute resolution (ADR) procedures, as stated in some contracts. However, in addition, the court will impose cost sanctions on those who unreasonably refuse to consider ADR, even in cases where a party prevails in litigation.

The laws (legislation and judicial authorities) of England and Wales

Legislation (such as statutes and statutory instruments) and judicial authorities (court judgments) comprise the legal framework of England and Wales.

  • The laws that are enacted by the legislature through Acts of Parliament are referred to as statutes.
  • Statutory instruments are a type of secondary legislation that allows laws to be changed or implemented without the consent of Parliament.
  • Judicial authorities: the English common law is a compilation of court rulings over time.

To resolve a dispute, a judge must evaluate the pertinent laws or judicial precedents and apply them to the issue at hand.

Precedent

Precedent is the foundation of the common law system. Lower courts must abide by the rulings of higher courts. This adheres to the court system’s hierarchy.

The “ratio decidendi” is the guiding principle of every decision. Although the courts must abide by the concept derived from a binding decision, they are not required to follow every detail of the ruling. “Obiter dicta” describes a ruling in which a comment is made that is not relevant to the reasoning behind the decision. Because of the calibre of the judge delivering the comment, the court may find this convincing even though it is not binding in subordinate courts.

Reporting

A “transcript” is a written account of the court proceedings, including the opening statements, motions, testimony, exhibits, and, in the event that a decision is made orally, that ruling.

A “judgment” is solely the ruling of the court. When a judgement is “handed down,” it is not made orally but is delivered in writing. Usually, the transcript is a replica of the ruling. Neutral citations are typically included in judgments; for example, [2018] UKSC 1 (all cases in the Supreme Court, Court of Appeal, and High Court have received neutral citations since January 2001).

Law reports are detailed summaries of the case, often including  a discussion of the facts, the authorities and legal principles consulted, and the verdict. Occasionally, they will contain the points made by each side. The law report series editor, not the judge, decides whether to report a case; therefore they are not created for every instance. If a case has legal significance, it will typically be publicised.

A matter may be handled differently if it is heard by a superior court.

Negative Treatment Icon

  • This indicates that the decision has been subsequently reversed, disapproved, or overruled.

Cautionary Treatment Icon

  • This indicates that some doubt has been cast on the decision.

Positive Treatment Icon

  • This indicates that the decision has received positive treatment—affirmed, applied, etc.

Neutral Treatment Icon

  • This indicates that the decision has received neutral or ambivalent treatment: considered, explained, etc.

Information Icon

  • This indicates that no treatment has been given – only citation information is available.

The meaning of these phrases is:

  • Regarding the lower court’s decision regarding the appeal:
  • Affirmed/approved: a higher court accepts the lower court’s ruling.
  • Disapproved or reversed—a higher court deviates from the lower court’s ruling.
  • Concerning a ruling that is not under appeal:
  • Applied – in this circumstance, the precedent established in a different instance is applied.
  • Distinguished – the court is not required to adhere to the prior ruling because of the significant distinctions between the current case and the prior case.
  • Overruled: When a higher court deviates from a lower court’s ruling. The earlier ruling is no longer enforceable. The same hierarchy’s courts may likewise experience this.
  • Followed – the precedent established in an earlier case is used in a subsequent case.
  • Not followed – a prior decision deviates from the precedent established in a previous case.
  • Examined or mentioned – a brief reference to the matter was made.

Cross border guidance

Cases, including cross-border components, may be handled in courts in England and Wales while litigation is handled. In situations like these, it’s critical to understand the many legal frameworks that could be in place to decide, among other things, which nation’s laws will be used to resolve the dispute, which nation’s courts will have jurisdiction over the matter, and how the litigation process will be affected.

International guidance

The international guideline in dispute resolution [DR] aims to give an understanding of the local regulations and processes that are applicable in that country by covering the legislation of several jurisdictions. The guidelines are meant to serve as an overview and guide for any necessary local legal assistance. A wide range of topics pertinent to dispute resolution practitioners are addressed, such as information on commercial contracts and sovereign immunity, as well as particular litigation phases like enforcement and sorts of disputes like technological disputes.

What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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What does a dispute resolution lawyer do?

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