Newstead and Davidson Outline Important Principles of Litigating in the U.K.

Shook, Hardy & Bacon Partner Alison Newstead and Associate Andrew Davidson have authored a February 26, 2016, Inside Counsel article about five key aspects of litigating in the United Kingdom.

Noting that Scotland and Northern Ireland have different rules of procedure than England and Wales, the authors report that courts in the latter jurisdictions not only require both parties to assist in dealing with matter justly and proportionately, but "take an extremely active role in managing cases from start to finish." As the article observes, "In practical terms this means that a party with much larger resources cannot simply bury a disadvantaged opponent with motions (applications), documents and demands for witness testimonies to take advantage of their superior means. Likewise, Plaintiffs cannot make disproportionate demands for disclosure of documents."   

Newstead and Davidson further explain that parties must "carry out investigations and exchange evidence before formal court proceedings are commenced," in keeping with Civil Procedure Rules. In addition, pleadings must be sufficiently detailed at an early stage, with defendants required "to address each allegation individually and either admit or deny it, or state why they are unable to either admit or deny the allegations." The extent of discovery is generally more limited than that permitted in the United States, but places "an onus on the parties to identify the relevance of their own documents." As in other jurisdictions, "the loser pays the winner's costs" in most cases except those alleging personal injury, but both parties must comply with cost budgeting and provide to the court a budget setting out "incurred and estimated costs for each stage of the litigation."   

"The front-loaded nature of litigation in the U.K. means that overseas counsel needs to take active steps to manage potential cases at the earliest possible stage, even if court proceedings have yet to be issued," conclude Newstead and Davidson. "Local counsel should be appointed, any pre-action obligations addressed, documents should be preserved without delay and liability investigations undertaken at an early stage. A well-considered cost benefit analysis should also be completed swiftly to determine whether settlement may be the best option, before significant legal costs are incurred."