Understanding English Litigation and Arbitration: getting the best resultsGillie Belsham

Ince and Co International Law Firm

Litigation

UK Law ??

High Court –

Commercial Court

Technology and Construction Court

Arbitration

Arbitration Act 1996

LMAA

ICC

LCIA

Sole arbitrator or 3 ??

NB – beware different methods of halting Limitation

Arbitration

Act:

“ The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”

Scope for consensual framework

Often forgotten!

How are you going to get agreement on the framework?

Judges, Juries and Arbitrators

Judges – JAC

In Commercial Court and TCC, generally highly experienced

Drawn from the Bar

Well known to practitioners

Impartial and independent

Appointments not politically based

Juries

N/A

Facts and law determined by a Judge sitting alone

Impact

Jury/prejudice points of limited value.

Arbitrators

Duty to be impartial

Power to remove arbitrator if “justifiable doubts” as to his/her impartiality

Tribunal shall act fairly and impartially as between the parties

Damages

Punitive damages

Exemplary/aggravated damages

Purpose of damages under English law

Litigation landscape

Issue of Claim Form/start arbitration

Statements of case/submissions

Disclosure

Written witness of fact evidence exchanged

Written expert reports exchanged

Trial/hearing

Judgment/Award

Opportunities to analyse/benchmark your risk

Initial instructions – an early view – somewhat one-sided!

Statements of case/submissions - legal case starts to be developed – how are the other side putting their case?

Disclosure and witness statements – the factual picture – does it add up? Are there gaps? Can they be filled?

Expert evidence – the technical case – how does it fit with the legal case? How will your expert perform?

Witness evidence

NB – no depositions

Statements exchanged long before oral testimony

Impact

Getting your witness to focus

NB no “coaching”

Dealing with sensitivities

Input from internal Counsel

Expert Evidence

Appointed by party

Duty owed to the Court

Must be independent and impartial; not advocates

Will be subject to intense forensic cross examination

Court will be critical if expert considered partial

Check your expert’s record

Trial - hearing

Can be many weeks/months long in big cases

Evidence given orally takes place at trial/hearing

Key witnesses and experts must attend to give evidence in person/video link

Parties open their case in turn

Witness evidence plus cross-exam

Expert testimony

Summing up and closings

Judgment/Award

Leverage

Costs

Recoverable under English law

Scope broad – Court and lawyers’ fees, experts etc

Standard basis – 60-70%

Indemnity basis - 90%

Costs “follow the event”

Part 36 offers

Getting the best results: The psychology of litigation

Often overlooked !

Aggression –v- toughness

Purposive aggression

Keeping lines of communication open

Thinking strategy and benchmarking it at appropriate opportunities

Assessing your methodology – is it working ?

Witness and expert evidence – key factors in winning cases

Getting the best results : big cases

Teamwork – extent of team in big cases

How to maximise its output

Resourcing and overlap-v- silos

Why important ?

Robustness and resilience

Creating and maintaining a winning team

2 x 2 = 16