A guide to commercial litigation:

a step by step approach

 Contents
1. What lies ahead – an introduction 1

2. Before litigation starts 3

3. Preparing your case 7

The Times
– Best Law
4. Trial and enforcement 11
Firms 2020
5. Managing litigation – some practical 13
Commercial dispute
considerations
resolution
6. Common terms 14

7. Why choose Stephenson Harwood? 16

The Lawyer’s
Litigation Tracker -
“Stephenson Harwood’s Top 5 Law
‘highly experienced Firms 2019
practice’ regularly Number of cases in the
English courts
advises on large, high-
value and technically
challenging disputes.”
The Legal 500 UK 2020 Litigation and
dispute resolution
team of the year
Legal Week
– The British Legal
Awards 2018

b
Before litigation starts
1. What lies ahead –
an introduction

This guide provides an outline of the There are a number of important steps and
different stages in court proceedings in rules in English civil proceedings that are not
England and Wales (the court system is covered by this guide. For example special
different in Scotland and Northern Ireland), rules apply to certain types of case, such as
and sets out some of the options available family proceedings and mortgage possession
to those involved in litigation. It focuses on proceedings. There are also different rules in
commercial disputes in the High Court. the Commercial Court. Every case will differ.

As the illustration opposite shows, litigation This guide is based on court rules as of
is a process. The guide aims to take the March 2020 – and of course, these rules may
reader through each stage, broadly in the change. It should not therefore be relied on
order that it happens. by anyone contemplating bringing a claim, or
who faces the prospect of defending a claim.
Achieving a successful outcome in litigation,
however, requires a great deal more than Should you or your company become
knowledge of the process. It usually depends involved in a dispute, we recommend you
on hard work, a strong team, careful seek immediate legal advice.
preparation and a willingness to review and
flex the approach as a case proceeds.

“It’s a very strong, well-resourced team with a

wide set of abilities and which is right at home
on a range of complex litigation cases.”
Chambers UK 2020, litigation
1
 Stages in litigation

Before litigation starts Preliminary investigations and document preservation

Alternative dispute resolution?

Pre-action protocols (including letter of claim and response)

Preparing your case Claim form and particulars of claim

Defence (and any counterclaim)

Reply (and any defence to counterclaim)

Allocation, directions and cost budgeting for the case

Disclosure of documents

Witness statements

Expert reports and meeting of experts

Trial and enforcement Trial preparation

Trial

Enforcement

Appeals

2
Before litigation starts
2. Before litigation starts

Pre-action protocols If a party is found not to have acted reasonably

in attempting to settle the dispute before
The English courts take the view that litigation proceedings are started, then the courts can
should be a last resort. For some disputes, a take this into account at a later stage when
specific pre-action protocol will apply – for deciding which party should pay costs, and the
example, in respect of professional negligence level of those costs (see page 4).
and defamation claims. If a specific pre-action
protocol applies, then save in exceptional Alternative dispute resolution
circumstances such as for matters of great
urgency, you will need to comply with the Parties to a dispute are encouraged by the
detailed requirements of that protocol. This courts to consider whether some form of
will involve, among other things, the early alternative dispute resolution (or ADR) would
exchange of information and documents. be more suitable than litigation. Whilst the
parties can choose whatever form of ADR
Even if one of the specific pre-action they consider to be appropriate, the more
protocols does not apply, as soon as litigation conventional options include:
is contemplated, parties are under a duty
to preserve relevant documents under • Arbitration – a form of dispute resolution
their control. You will also still be expected (normally confidential) pursuant to which
to make serious attempts to resolve your one or more arbitrators decide a case
dispute without recourse to the courts. In all rather than a court appointed judge.
disputes, therefore, the courts expect you to • Mediation – this is a facilitated negotiation
exchange information and documents and to assisted by an independent third party
behave reasonably to try to avoid litigation. mediator appointed by the parties.
This will normally mean that the claimant • Early neutral evaluation by an independent
should write a detailed letter of claim to the third party, who advises in a non binding
defendant setting out the basis of the claim way on the merits of each party’s position.
and giving the defendant a reasonable time
• Expert determination – in which an
to ask for more information and to respond
independent expert is appointed to
in detail to the claim. The parties should if
resolve the matter by producing a legally
possible conduct genuine and reasonable
binding decision.
negotiations with a view to settling the claim.
• Other forms of discussion and negotiation.
The parties should also consider alternative
dispute resolution (see opposite).

3
It might be that one or more of the above There are other ways in which litigation might
procedures is provided for in a contract be funded (in other words, not directly by the
which forms the basis of the dispute. If the claimant or defendant). It might be possible
contract does provide for some sort of ADR to find a third party funder, who would agree
then the parties should, save in exceptional to finance your legal costs, normally in return
circumstances, follow the procedure for a share of the proceeds if the case is
provided for. successful. These types of arrangement
will be allowed by the courts if they have no
Consideration should also be given to other additional features that make them contrary
ways of settling a dispute – for example, by to public policy. The third party funder could
referring a complaint to an ombudsman. be liable for the costs of the opposing party if
the claim is unsuccessful.
Whilst it might be possible to settle the
case before proceedings start, if this is not “Damages based agreements” (or
possible you can still agree a settlement with contingency agreements) are also permitted,
the other parties at any time during the court although they are not widely used. Under
proceedings – even after the trial. However, these agreements, fees are based on a
most cases do settle before trial. percentage of recoveries from the litigation.

Costs Alternatively, insurance is sometimes

available for litigation costs. There are two
Litigation can be expensive. You should types of insurance available. ‘Before the
therefore seek advice on how much court event’ (“BTE”) policies can be taken out
proceedings might cost. Be aware that litigation (usually with an annual premium) to provide
is often unpredictable, so it can be hard to cover for possible future disputes. You may
estimate costs accurately. Generally, English also be able to take out an ‘after the event’
lawyers charge for their work on an hourly basis. (“ATE”) policy to cover litigation costs once a
dispute has arisen. These policies generally
The general rule in English litigation is that
cover a party’s own expenses as well as
the losing party pays the winning party’s
the risk of having to pay an opponent’s
reasonable costs – although it is rare that all of
legal costs if a party is unsuccessful in the
these costs will be recovered. A losing party
litigation. You will not be able to claim the
therefore usually has to pay not only their own
insurance premiums from your opponent
costs but also those of their opponent.
even if you are successful in your claim. In
It might be possible for you to enter into a some circumstances policies can also be
conditional fee agreement (under which you obtained to cover your own solicitor’s costs,
would pay no, or a reduced, fee if the case in part. Insurance is unlikely to be available if
is unsuccessful, but generally a higher than the prospects of success are not good.
normal fee if the case is successful). You will
not be able to claim the success amount from
your opponent.

4
Although the third party funder market
is increasing, it remains the case that the
vast majority of major commercial cases in
England and Wales are not funded by such
alternative means. You should seek legal
advice on your options.

Which court?
The English courts might not have jurisdiction
to hear your dispute. For example, a contract
that is the subject of a dispute might have
a choice of jurisdiction clause in favour of a
foreign jurisdiction, and this will normally be
respected by the English courts.

Large commercial cases in England and Wales

are most likely to be brought in the Business
and Property Courts, which is a division of the
High Court. Lower value claims must usually
be issued in a County Court. There are plenty
of County Courts around the country.

“Offers considerable strength in commercial

litigation.”
Chambers UK 2020, commercial and corporate litigation
5
Other considerations before starting litigation
Preservation of documents The defendant’s ability to pay
Once litigation is reasonably in Does the defendant have any assets? If you
contemplation, the parties are under are bringing a claim, it is important to find out
an obligation to preserve all documents if the defendant has any assets or whether
(paper and electronic, including recordings the claim is covered by insurance. Otherwise,
of telephone calls). Automatic document there is a danger that a successful claim is
destruction policies should be suspended. unenforceable (see enforcement overleaf).

Pre-action disclosure Interim measures

In certain circumstances, it might be Is urgent assistance needed from the courts,
appropriate to apply to the court for copies such as a freezing order? For example,
of documents from an intended defendant is there a risk of the defendant moving
before proceedings have started. its assets out of the jurisdiction to avoid
meeting a judgment in your favour? If this is
Preservation of privilege a possibility, you will need to act urgently to
You do not have to provide legally privileged protect your position.
documents to other parties as part of the
disclosure process in English litigation. Care Limitation periods
should therefore be taken to ensure that Are there any ‘limitation periods’ you should
harmful, non-privileged documents are not be aware of? In short, a claim must be
created. See Section 3 for an explanation of brought within a certain period of time –
privilege. normally within six years of a dispute arising –
although this is a complex area of the law and
the time periods can vary depending on the
facts and the type of claim.

6
 3. Preparing your case

Bringing and defending a claim If you are served with an English claim form it
is very important that you take urgent legal
A claim is started by a claimant issuing a claim advice so that you do not miss the deadlines.
form in the relevant court office. Particulars of The English courts require strict compliance
claim, which set out the alleged facts on which with deadlines and the court rules generally.
the claim is based, may be included in the claim If a defendant fails to acknowledge service,
form or served within 14 days of the date of or to file a defence within the relevant time
service of the claim form. The claim form and period, the claimant can normally obtain
particulars of claim also set out what remedies ‘judgment in default’, which is a judgment
you are seeking from the court – e.g. damages, in the claimant’s favour obtained without a
an injunction and a declaration. Unless court application or hearing.
otherwise agreed (or another exception
applies), the key documents upon which a It is open to a defendant to bring a
party relies and the key documents necessary counterclaim against the claimant, if they
to allow the defendant to understand the have grounds to make their own claim against
claim must also be provided. This includes any the claimant, or to bring in a third party
documents which adversely affect the claim. as another defendant to the proceedings
A formal search for documents at this stage is (for example, if it is said that another party
not required. The claim form and particulars of is responsible for the claimant’s loss).
claim must then be served on (that is, formally Counterclaims are sometimes brought purely
delivered to) the defendant within four for tactical reasons – to put pressure on the
months of the date of issue, or six months if claimant to settle.
the defendant is not in England and Wales.
The claimant can, if desired, serve a reply,
The defendant then has 14 days to file responding to points raised in the defence.
a defence (or 28 days if they have filed
After service of the defence, the parties file
an ‘acknowledgment of service’ form)
a ‘directions questionnaire’, which gives the
responding to the particulars of claim if they
court information about the case, such as
do not admit the claim. This deadline may be
the number and identity of witnesses that
extended by agreement between the parties
they intend to call. The court then normally
or on application to the court. In practice,
holds a hearing, called a case management
an extension is often requested. Usually,
conference, to decide the future conduct of
the defendant must also supply the key
the case, including matters such as disclosure
documents upon which they rely (including
of documents, exchange of witness
adverse documents) when filing the defence.

7
statements, expert reports and costs Unless the parties agree the costs budget,
budgets. The court will also fix the trial date. the Court will review the estimates and, if
In simple cases, the trial date may be within necessary, revise them to a level it considers
one year of the start of the litigation. More appropriate in an approved costs budget. At
complex cases can take longer – between the end of the litigation, the recoverable costs
one to three years – to reach a final judgment of the winning party are assessed by the court
i.e. after all appeals have been exhausted. in accordance with the approved budget.

It may be possible to obtain a quicker Disclosure

judgment if you have grounds to ask the
court for ‘summary judgment’ on either In advance of the first case management
the whole of the claim or defence, or on a conference (a hearing at which the future
particular issue. The court will give summary conduct and timetable of the case is decided
judgment, which means that the case does by the court), the parties must try and agree
not need to go all the way to a full trial, if it their approach to disclosure. At the case
considers that there is not a real prospect of management conference the court will order
a party succeeding in its claim or defence and (or approve, in the event the parties have
there is no other compelling reason why the agreed between themselves) the ambit of
case or issue should be disposed of at trial. the disclosure process. It gives each party
the chance to test the opponent’s case at
The court also has power to ‘strike out’ a an early stage. A case will often turn on the
party’s claim, either in whole or in part, if it documents that are disclosed. Disclosure
is satisfied that it discloses no reasonable can however be an expensive process.
grounds for bringing or defending the claim,
it is an abuse of the court process or a party Since the introduction of the Disclosure Pilot
has failed to comply with a rule or court order. Scheme in January 2019, the courts have
steered parties towards a more request-led
Costs budgeting approach to disclosure, more commonly seen
in international arbitration. Parties can choose
A costs budget is an estimate of the costs from a range of disclosure models, from Model
(including disbursements such as barrister’s A (confined to known adverse documents)
and expert’s fees) which a party estimates it through to Model E (the widest, search-based
will incur in the proceedings. model). Model E will only be approved by the
court in exceptional circumstances. Whether
In all cases where the claim value is between
or not the parties agree a wide or narrow
£50,000 and £10 million, parties must file
approach, known adverse documents still
and exchange budgets setting out estimated
need to be disclosed.
costs for each stage of the proceedings
before the first case management
conference. If a party does not do so, they
will not be able to recover their legal costs
from the losing party, save for the applicable
court fee.

8
Once the model, method and scope of You are not permitted to use documents
disclosure has been agreed, the parties must which are disclosed by the other parties for
then give disclosure of those documents, any purpose other than the proceedings in
which involves listing them and making them which they are disclosed. Misuse of disclosed
available for ‘inspection’ – usually giving documents can amount to contempt of court.
copies. Each party must set out the extent of
the search it has carried out and certify that, Witness statements
to the best of its knowledge, it has complied
with its duty of disclosure. Generally, you Before the trial, the parties exchange written
cannot avoid disclosing a document or statements containing the evidence of their
information merely because it is confidential. witnesses. These statements are usually
the ‘evidence in chief’ of the witness, which
You are not entitled to inspect another means that there is no need for the witness
party’s documents if they are privileged. You to give oral evidence setting out the matters
will need to take specific advice on whether in his statement. A witness is usually then
documents are privileged. In general terms, cross-examined on (i.e. asked questions) the
a document is subject to ‘legal advice statement at trial.
privilege’ if it is a communication between
a lawyer and their client and its dominant It is possible to rely on a witness statement
purpose is to give or receive legal advice. as evidence at trial even where the witness is
Only communications between a lawyer and not called to give oral evidence. The relevant
the client are protected by this privilege. The party must inform the other parties that the
privilege extends to advice on both what witness is not being called to give evidence,
should sensibly be done in the relevant legal and explain the reasons why not. However, a
context and the party’s strict legal rights witness not being called to give oral evidence
and obligations. A document might also be may affect the weight given by the court to
subject to ‘litigation privilege’. Litigation that witness’s evidence. Further, the other
privilege applies to communications party can apply to court for permission to call
between a lawyer and their client, or between the witness to be cross-examined.
either of them and a third party, for the
dominant purpose of giving or receiving
legal advice in connection with litigation, or
collecting evidence for use in litigation, from
the time when the litigation is pending or is in
reasonable contemplation.

“Proactive, commercial in their approach, and

delivering an excellent client service.”
Chambers UK 2020, commercial and corporate litigation
9
Experts
For many cases, there will be specialist or
technical issues on which the court will
require the assistance of independent
experts, or a single expert. For example, in a
medical negligence case, the parties might
instruct medical experts to opine on the
question of whether or not a doctor’s actions
were negligent.

Experts are generally appointed by the

parties rather than by the court. However,
the court does have power to direct that
only one expert give evidence on an issue. In
a commercial context, this is generally only
done in relatively uncontroversial matters.
In these circumstances, the parties jointly
instruct the expert.

The role of the expert is to provide an opinion

to the party (or parties) instructing them.
In so doing, they owe their instructing party
a duty to exercise reasonable skill and care.
However, when instructed to give or prepare
evidence for court proceedings, the expert
has a duty to help the court on matters within
their expertise, and this duty overrides any
duty to the instructing party.

There is normally an exchange of expert

reports. The experts are then called to give
oral evidence, and are cross-examined, at
trial. The experts may also be ordered to
meet up before the trial to see to what extent
their reports can be agreed.

An expert’s instructing party pays their fees.

However, these will form part of the costs of
the action that a party may recover from the
opposing party, provided that the court has
approved these in advance – see the earlier
paragraphs on costs budgeting.

10
 4. Trial and enforcement
enforcement

The trial The claimant’s advocate usually starts by

presenting their case. The defendant’s
The parties will give the court a written advocate then presents their case. This is
outline of their case before the trial. This is called ‘opening submissions’.
called a skeleton argument. The length of
the trial will depend on matters such as the In civil cases in England and Wales, there
complexity of the case and the number of is no jury, save in some defamation cases.
witnesses giving evidence. The general rule is that, at trial, witnesses
of fact give oral evidence and are cross-
There is one judge, who listens to all the examined. Expert witnesses may also be
evidence. It is for the parties to present the cross-examined. Cross-examination takes
evidence. The judge does not investigate place after opening submissions. The parties
the case, but listens to the evidence and then summarise their cases (called ‘closing
usually also asks questions. Hearings are submissions’).
generally held in public and there is no
restriction (aside from physical space) on Judgment
who attends, whether they are connected to
the proceedings or not. Following trial of the action, the judge usually
takes a period of time to write the judgment.
In English proceedings in the High Court, the It is then typically delivered (known as being
case is usually presented orally at trial by a ‘handed down’) in court, sometimes read
barrister (although some solicitors have the out by the judge and, more often, copies
right to present cases in the High Court). In are made available to the parties and the
larger and more complex cases, a barrister public by the judge’s clerk. Once handed
is actually likely to be instructed at the down, the judgment is public. Only in very
beginning of a case, and will be fully involved exceptional circumstances do parts of or
in drafting the court documents such as the even whole judgments remain confidential
particulars of claim. The barrister will also (at the request of the parties and where
often represent a party at any other court the court agrees this). Frequently, the draft
hearings before the trial. judgment is provided to the parties’ legal
teams in advance of the delivery of the
decision to allow typographical errors or
(more controversially) obvious errors to be
pointed out. Sometimes the legal teams can
communicate the decision to their clients at

11
this stage and sometimes they cannot – this A respondent can serve a respondent’s
depends on the wording of the embargo notice, and must do so if it is also seeking
placed on the front of the judgment by the permission to appeal, or wishes to ask the
judge. There can even be challenges to the appeal court to uphold the judge’s order
decision during this period and before the for different or additional reasons. The
decision is formally handed down. Following respondent’s notice must be filed within 14
handing down of the judgment, there is often days of service of the appellant’s notice or (if
a further hearing where the judge hears later) of notification that the appellant has
argument as to appropriate remedies based been granted permission to appeal.
on the judgment and makes the final order.
Enforcement
Appeals
If a claimant wins, they will get judgment in
An unsuccessful party (the ‘appellant’) can their favour. If the defendant does not pay,
appeal from a County Court to the High the claimant can take steps to enforce the
Court or from the High Court to the Court of judgment. The main enforcement means are:
Appeal, subject to permission from the lower
court or appeal court. The court only grants • The High Court can give a sheriff
permission if it considers that the appeal has a authority to seize and sell the debtor’s
real prospect of success or there is some other (defendant’s) property.
compelling reason for the appeal to be heard. • Third party debt orders, which redirect
to the creditor (i.e. the claimant) funds
It is possible to appeal in relation to findings owed to the debtor by a third party
of both law and fact. However, the appeal – for example, funds in the debtor’s
courts are generally reluctant to overturn (defendant’s) bank account.
a trial judge’s findings of fact, particularly
• Charging orders over land or securities –
where these depend on the judge’s view of
this gives the claimant a charge over the
the credibility of the witnesses.
defendant’s property.
The appellant must file an ‘appellant’s notice’ • Insolvency proceedings – i.e. steps taken
(a request for permission to appeal made to to put a non-paying defendant company
the appeal court) within 21 days of the date into liquidation, or bankruptcy in the case
of the decision appealed against, unless the of individuals.
lower court has directed a different period.

“They are very capable of developing

sophisticated arguments when needed and
are flexible in their approach.”
Chambers UK 2020, commercial and corporate litigation
12
 5. Managing litigation –
some practical
considerations
Success in litigation doesn’t just require a strong case. It involves hard work, commitment,
careful preparation and a well-conceived strategy.

Get a head start could damage your case, or to destroy

documents that should be disclosed.
If possible spend some time and effort
investigating a claim before issuing proceedings. Prepare for disclosure
This should include locating relevant
documents, allowing your solicitors to speak to Remember that disclosure is a very important
relevant witnesses and establishing whether or part of litigation in England and Wales. You
not your opponent has sufficient assets to pay are likely to have to disclose relevant (non
a successful claim and/or costs. That way, you privileged) documents, even if they are
will be better prepared for litigation, have fewer unhelpful, confidential or embarrassing. On the
surprises when proceedings start, and gain a other hand, you might receive documents from
clearer idea of your chances of success. your opponent that really assist your case.

Seek early advice Make time

There might be limitation periods that are about Be prepared for the amount of time involved
to run out; urgent court applications that should in litigation. A lot of management time might
be made such as an application to freeze your be involved in preparing a case – particularly if
opponent’s assets; or court deadlines looming. employees are required to give evidence. In our
experience the more involvement in a case a
Consider the alternatives client has, the better their prospects of success.

Consider whether there are other options Count the cost

available for resolving your dispute – the
courts will expect you to do so and you might Bear in mind that litigation can be very
be able to do a good deal that avoids the time expensive, particularly in large and complex
and expense of litigation. cases that last for a number of years.

Take care with documents Review your approach regularly

Take advice on matters such as privilege and Litigation can be a very complex process,
disclosure at an early stage – it is important, requiring a careful and regular review of your
for example, not to create documents that chosen litigation strategy and tactics.

13
6. Common terms
A Counterclaim
Acknowledgment of service A claim brought by a defendant, against the
A form filed by a defendant responding to the claimant, in response to the claim brought by the
commencement of a claim. claimant. See also Part 20 claim.

ADR Cross-examination
Alternative dispute resolution – a description of The questioning of a witness at trial by the
the different possible methods used to resolve opponent’s advocate (see also: evidence in chief).
disputes otherwise than through the normal court
process, e.g. mediation.
D
Damages
Arbitration Money awarded by the court to the claimant,
A contractually agreed form of dispute resolution payable by the defendant, by way of
(normally confidential) pursuant to which one compensation.
or more arbitrators decide a case rather than a
Damages based agreement
court-appointed judge, and which uses different
An arrangement whereby a party’s lawyers are paid
procedural rules from those adopted by the courts.
a percentage of any recoveries from the litigation.
ATE policy
Defence
A policy for ‘after the event’ insurance, taken out to
The document in which a defendant sets out the
cover costs after a dispute has arisen.
grounds on which he is defending a claim.
B Directions questionnaire
BTE policy A form filed by the parties before a case
A policy for ‘before the event’ insurance, taken out to management conference, giving the court
provide cover for possible future disputes. information about the case.
Disclosure
C The process pursuant to which the parties to
Case management conference (or CMC)
litigation identify to the other parties, normally by
A court hearing to decide the future conduct of a
the provision of a list, those documents which they
case, including certain procedural matters such as
are obliged to disclose (see also: inspection).
the exchange of evidence.
Charging order E
A method of enforcing a court judgment, in which Evidence in chief
the court gives the applicant a charge over another The evidence given by a witness for the party who
party’s (usually the losing defendant) property. called them to be a witness.
Claim form Expert witness
The form which a claimant uses to start a claim. An individual, appointed by a party (or the
Conditional fee agreement parties jointly), to provide technical or specialist
An arrangement whereby a party to litigation agrees assistance to the parties and the court.
with their solicitors that they will pay no fee, or a
F
reduced fee, if the case is unsuccessful, but a higher
Freezing order
fee if the case is successful. A party will not be able
A type of injunction, given by the court, which
to recover the success fee from its opponent.
prevents a person gaining access to or moving
their assets.

14
I is a communication between a lawyer and their
Inspection client, or between either of them and a third party,
The process of allowing the other parties to inspect created for the dominant purpose of giving or
disclosed documents (or the provision of copies of receiving legal advice in connection with litigation.
disclosed documents to the other parties).
S
J Statement of Case
Judgment in default The document in which a party sets out its case
e.g. particulars of claim and defence.
A court judgment in a claimant’s favour which can
be obtained by a claimant if a defendant fails to Statement of Truth
respond to a claim. A statement that the person who signs it believes
the facts in the document to be true. Certain
L court documents are required to be validated by a
Limitation period Statement of Truth.
The period of time within which a claim must be Strike out order
started. For commercial claims, this is normally six An order of the court that identified written
years from the date on which the cause of action material cannot be relied on by a party.
arises.
Summary judgment
M The court will give a summary judgment, if it
Mediation considers that there is not a real prospect of a
Another form of ADR – a facilitated negotiation party succeeding in its claim or defence and there
assisted by an independent third party mediator is no other compelling reason why the case or
appointed by the parties. issue should be disposed of at trial. As a result, the
case will not go all the way to a full trial.
P
Particulars of claim T
The document in which a claimant sets out the Third party debt order
details of his claim against the defendant. Third party debt orders redirect to a creditor funds
Part 20 claim owed to a debtor by a third party – for example,
A claim other than a claim by the Claimant against funds in the debtor’s bank account.
the Defendant e.g. counterclaim by the Defendant
against the Claimant or against any person for a
W
contribution or an indemnity. Witness statements
Written statements containing the evidence of the
Pre-action protocol
parties’ witnesses.
Statements of best practice about the conduct
which parties to a dispute should adopt in the Without prejudice
period before a court claim is started. Negotiations between parties to a dispute with a
Privilege view to settling the dispute are usually conducted
The right of a party to refuse to give inspection on a ‘without prejudice’ basis, which means that,
of a document on the basis that the document save in certain circumstances, the content of the
is confidential and is either a communication negotiations cannot be revealed to the court.
between a lawyer and their client for the
purpose of giving or obtaining legal advice, or

15
 7. Why choose Stephenson
Harwood?
Our award winning litigation practice has a market leading reputation
and is highly respected by clients and peers alike.

We handle all types of litigation and arbitration, including aviation,

construction and engineering, energy, financial and banking disputes,
fraud and asset tracing, information technology, insolvency,
intellectual property, professional indemnity, property disputes,
regulatory investigations, shipping and trust litigation.

Stephenson Harwood has acted in many of the UK’s top litigation

matters in recent years.

We are a past winner of the ‘UK litigation team of the year’ and
‘Litigation and regulatory law firm of the year’ awards.

16
17
GET IN TOUCH

John Fordham Edward Davis

Partner, London Partner, London

T: +44 20 7809 2300 T: +44 20 7809 2327

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