1 . What is the structure and organisation of local courts dealing with commercial claims? What are the main procedural rules governing commercial litigation?
Civil procedure in England and Wales is governed by the Civil Procedure Rules 1998 (CPR), which are supplemented by practice directions (PDs) which provide practical guidance on the CPR and how to interpret the rules.
The County Court and the High Court of Justice are the courts of first instance for civil disputes. Claims of a value of less than GBP 100,000 are started in the County Court. Otherwise, a claim will be started in the High Court if:
- the value of the claim is more than GBP 100,000;
- it is justified with regards to the complexity of the facts, legal issues, remedies or procedures involved; and/or
- it is justified with regards to the importance of the outcome of the claim to the public in general (PD 7A).
The High Court consists of three divisions, with overlap in jurisdiction in some cases:
- The King’s Bench Division is the largest division with the most varied jurisdiction. It deals with most claims in contracts and tort and comprises five specialised courts dealing with specific areas of law: the Administrative Court, the Admiralty Court, the Commercial Court, the Mercantile Court, and the Technology and Construction Court. The Commercial Court in particular specialises in handling domestic and international commercial litigation, with emphasis on international trade, banking and financial services, insurance and commodities disputes.
- The Chancery Division has some overlap with the work undertaken in the civil lists of the King’s Bench Division. The Chancery Division specialises in civil disputes that deal with property or land, mortgages, partnerships and deeds, trusts, probate, intellectual property issues, and insolvency law.
- The Family Division is dedicated to family disputes.
Depending on the lower court in which the case was heard and what type of judge made the decision being appealed, appeals may be lodged before the High Court or the Court of Appeal. The final court of appeal is the Supreme Court.
 PD 7A, paragraphs 2.1 and 2.4.
2 . What pre-action considerations apply?
The CPR governs the procedural aspects of litigation, including issuing proceedings.
Proceedings will be commenced when the claimant files a completed Claim Form at a County Court or High Court, setting out the basis of the claim, followed by the court issuing the claim by sealing the Claim Form. The Claim Form must then be served on the defendant(s) by one of the methods of service prescribed by the CPR. The defendant(s) then have, under the CPR, 14 days from service of the Claim Form to file an Acknowledgement of Service.
Before proceedings are commenced, parties must follow pre-action protocols contained in the relevant PD on pre-action conduct and protocols (Pre-action PD). The pre-action protocols that apply will vary depending on the nature of the dispute. The primary aims of pre-action protocols are to:
- encourage exchange of full information about a prospective claim at an early stage;
- assist the parties to avoid litigation through agreement to settle before any commencement of proceedings; and
- seek the efficient management of proceedings where litigation is inevitable.
Courts will proactively enforce the use of the pre-action protocols and the Pre-action PD and judges have the power to impose penalties (usually in the form of costs) where a party has been non-compliant with the pre-action protocols.
3 . What are the main alternative dispute resolution (ADR) methods used to settle large commercial disputes?
While there is no set definition of ADR, the glossary to the CPR defines ADR as a ‘collective description of methods of resolving disputes otherwise than through the normal trial process’. Generally, it is viewed in the United Kingdom as all dispute resolution methods other than court proceedings. If successful, ADR can provide a swift resolution for the parties in dispute at an often comparatively smaller cost when compared to litigation and the associated procedural steps. Common categories of ADR include negotiation, mediation, expert determination and arbitration.
The overriding objective, which is set out in Part 1 of the CPR, expressly encourages parties to pursue a form of ADR that the court considers appropriate.
This judicial encouragement is reflected in case law. For example, in Halsey v. Milton Keynes General NHS Trust the Court of Appeal gave guidance on when a refusal by a party to mediate should give rise to cost sanctions (known as the “Halsey principles”).
The courts’ willingness to be proactive and encourage ADR was demonstrated relatively recently in Lomax v. Lomax where the Court of Appeal held that it had the power to order a form of ADR — early neutral evaluation — even in circumstances where one of the parties did not consent to engaging in the same.
  EWCA Civ 576.
  EWCA Civ 1467.
4 . How long, on average, do court proceedings take to reach trial?
Courts have considerable discretion to fix the deadlines for each stage of the litigation process, depending on the size and complexity of the case. It will generally take at least 18 months for a relatively straightforward commercial case to reach trial.
The Shorter Trials Scheme and the Flexible Trials Scheme, in effect since October 2018 (albeit previously operated as a pilot programme), allow parties in the Business and Property Courts to achieve shorter and earlier trials for business-related litigation, at a reasonable and proportionate cost. This means that commercial and business cases, which do not require extensive disclosure, witness or expert evidence, can reach trial in less than a year.
 PD 57AB.
5 . What disclosure obligations apply? Are parties required to disclose unhelpful documents as well as those on which they rely?
Defined in CPR 31 as ‘stating that the document exists or has existed’, disclosure is the process whereby documents that a party has, or has had, are made available as evidence as part of proceedings. Once litigation is contemplated, parties are obligated to preserve documents that may be disclosable.
CPR 31.4 defines a “document” as including ‘anything in which information of any description is recorded.’ This will include electronic documents, such as email and computer records.
As part of the parties’ disclosure obligations, they are required to search for (and disclose) documents that are or were in their “control”. Control means the party has (or had) the right to the document, and encompasses:
- physical possession;
- the right to obtain a document from another party; and
- the right to inspect or take copies of a document in the hands of another party.
Within standard disclosure, parties are required to make a reasonable search for documents. Factors such as accessibility of documents, number of documents involved, the significance of documents likely to be located during a search and the cost of recovering documents will be considered relevant to the reasonableness of the search.
The duty of disclosure continues until judgment or settlement. Therefore, if disclosable documents come to a party’s attention during proceedings, all parties are obliged to be notified “so soon thereafter as possible”.
Parties will typically have the option of disclosing any document seen as helpful to their case. It should be noted, though, that parties are also obliged to disclose any unhelpful documents that are, or have been, in their control, including those which adversely affect their own case or support another party’s case.
Whilst the existence of privileged documents must be disclosed, these may not be inspected by the other party.
English law recognises two main categories of legal professional privilege: (1) legal advice privilege; and (2) litigation privilege:
- Legal advice privilege attaches to confidential communications between a client and a lawyer in their professional capacity (including an in-house lawyer) regarding the seeking and/or giving of legal advice. Generally speaking, as a matter of English law, communications between an in-house lawyer and non-lawyers within a client organisation will be privileged so long as they relate to the seeking or giving of legal advice, or if they are communications in the course of anticipated or ongoing litigation or arbitration (as to which see litigation privilege, below). In other words, an in-house lawyer as a matter of English law rules of privilege is in the exact same position as an external lawyer communicating with the client.
- Litigation privilege arises when (1) the client is anticipating litigation or taking part in active litigation; and (2) the communication is made for the dominant purpose of litigation. Litigation privilege protects not just client-lawyer communications, but also communications between either of the lawyer or the client and any third party. “Lawyer” for the purposes of litigation privilege includes in-house lawyers.
 CPR 31.11(1).
 Per Vos LJ in Tear and another v. Engelhard and others  EWCA Civ 487, .
6 . Can witnesses be required to attend trial and face cross-examination?
Witnesses can be compelled to attend court by serving them with a summons. A witness summons has to be served at least 7 days before the date when the witness is required to attend court and, if they do not attend, they can be subject to severe penalties, including criminal sanctions.
 CPR 34.
7 . What discretion do the courts have in making costs orders?
The general rule under English law is that costs “follow the event” and that a successful party recovers its costs. However, the courts have a wide discretion as to costs and may depart from this general rule. In exercising its discretion, the court will have regard to all the circumstances, including the parties’ conduct, whether a party has succeeded on part of its case (even if not wholly successful), and any settlement offers. A party’s conduct relates to both before and during proceedings and, in particular, whether any relevant pre-action protocols were followed and whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.
 CPR 44.2(b).
8 . What are the main types of interim remedies available?
During litigation, it is possible for a party to apply under CPR 23 and PD 23A for an order or direction to be made prior to the final judgment, awarding what is commonly referred to as interim relief. Interim relief can be given during the case management phase of a dispute; for example, by giving directions to a party on the disclosure of documents, or can be a specific remedy such as an interim injunction or strike-out.
An important category of interim remedy is the interim injunction. This will compel a party to either do a specific act or to refrain from doing a specific act. This can include an order to ensure a party preserves documentary evidence or an order that “freezes” some or all of a party’s assets (known as “freezing injunctions” and often used in cases of suspected fraud).
When deciding whether to grant an interim injunction, the guidelines set out in American Cyanamid Co (No 1) v. Ethicon Ltd will be considered by the court. This test considers:
- whether there is a serious question to be tried;
- whether damages would be an adequate remedy;
- who the balance of convenience favours; and
- any special factors.
If an interim injunction is granted, the applicant will likely be required to give a cross-undertaking in damages. This will allow the defendant to be compensated if it is later determined that the interim injunction was granted wrongly.
  UKHL 1.
9 . What approach do the local courts adopt with respect to arbitration? What arbitration law applies and is it based on the UNCITRAL Model Law?
Arbitrations seated in England, Wales or Northern Ireland are governed by the Arbitration Act 1996 (Arbitration Act). In addition, some elements of English arbitration law are found in the common law.
Where the seat of the arbitration is outside England, Wales or Northern Ireland, the following sections of the Arbitration Act may apply:
- sections 9 to 11 (stay of legal proceedings);
- section 43 (securing the attendance of witnesses);
- section 44 (court powers exercisable in support of arbitral proceedings); and
- section 66 (enforcement of arbitral awards).
Although the UNCITRAL Model Law has not been adopted in England, Wales or Northern Ireland, it has influenced, to a certain extent, the drafting of the Arbitration Act. Some notable differences relate to arbitrability, separability of arbitration clauses, competence of the arbitral tribunal to rule on its own jurisdiction and judicial intervention.
The English courts have a supportive role in relation to international arbitration. Where an international arbitration is London-seated, the English Commercial Court will be the principal supervisory court. The courts generally keep their involvement to a minimum and intervene only where absolutely necessary to support and give effect to the arbitral process. The court’s powers are identified in the Arbitration Act 1996 (Arbitration Act). In particular, section 44 of the Arbitration Act grants the court the same powers to make orders in arbitration proceedings as the court has in court proceedings, in respect of:
- the taking of witness evidence;
- the preservation of evidence;
- the inspection, photographing, preservation, custody, detention or sampling of property, which is the subject of the proceedings or as to which any question arises in the proceedings;
- the sale of any goods which are the subject of the proceedings; and
- the granting of an interim injunction or the appointment of a receiver.
10 . Can arbitrators grant interim relief?
Parties are free, as a starting point, to agree the tribunal’s powers to grant interim measures. All of the major arbitral institutions give the tribunal powers to grant interim relief. Many of these institutions grant very broad powers. For example, under Article 28(1) of the International Chamber of Commerce Rules 2021, the tribunal can ‘order any interim or conservatory measure it deems appropriate’. If the parties incorporate institutional rules or agree in a bespoke agreement, the tribunal can be granted significant powers to grant interim measures as a matter of English law.
In the absence of the parties’ agreement, the tribunal’s powers are much narrower. The default position under the Arbitration Act 1996 is that the tribunal has the power to grant the following interim and conservatory measures:
- security for costs;
- ‘directions in relation to any property which is the subject of the proceedings or as to which any question arises in the proceedings and which is owned by or is in possession of a party to the proceedings - (a) for the inspection, photographing, preservation, custody or detention of the property by the tribunal, an expert or a party, or (b) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property’;
- ‘direct that a party or witness shall be examined on oath or affirmation, and may for that purpose administer any necessary oath or take any necessary affirmation’; and
- ‘directions to a party for the preservation for the purposes of the proceedings of any evidence in his custody or control’.
Given the limited nature of these powers, if the parties have not agreed for the tribunal to have more expansive powers, it may be necessary to apply to the courts for interim relief.
 Section 38(1) of the Arbitration Act 1996.
 Section 38(3) of the Arbitration Act 1996.
 Ibid, section 38(4).
 Ibid, section 38(5).
 Ibid, section 38(6).
11 . On what grounds can an arbitration award be appealed?
The English courts may hear an appeal of an award on the grounds of lack of substantive jurisdiction or serious irregularity. Parties cannot agree to exclude either of these provisions.
The English courts may also hear an appeal of an award on a question of English law, unless the parties have excluded this right of appeal.
 Ibid, section 67.
 Ibid, section 68.
 Ibid, section 4(1).
 Ibid, section 69.
12 . What international conventions and agreements on enforcement of judgments or arbitral awards is your jurisdiction a party to?
The United Kingdom is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). The United Kingdom has submitted notifications extending the territorial application of the New York Convention to Gibraltar, the Isle of Man, Bermuda, Cayman Islands, Guernsey, Jersey and the British Virgin Isles (BVI).
The United Kingdom is also a party to the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
13 . What types of judgments in commercial matters are enforceable and what types are excluded?
The United Kingdom’s legal framework, alongside the international conventions it is a party to, shape the enforceability of its awards. When discussing enforceability of commercial judgments, it is best to separate these into two categories: domestic and foreign.
Domestic judgments will include an award which the court has ‘registered for enforcement; ordered to be enforced; or given permission to enforce’. These judgments are enforceable, although in certain cases may face challenge. Money judgments (where the defendant is ordered by the court to pay the claimant a certain sum), injunctions (where the defendant is compelled to do or not do a certain action) and declaratory judgments (where the court defines the parties’ rights based on the legal question presented) are all enforceable. Default judgments (where the court determines liabilities or orders a remedy without the engagement of the defendant) are enforceable. However, it is possible for a defendant to challenge this by appeal. Ex parte awards are also enforceable even though they may, as a result of enforcement proceedings, be set aside subsequently.
The United Kingdom is party to numerous agreements with foreign nations which provide for the enforceability of foreign judgments.
Where such agreement on jurisdiction and enforcement does not exist, English common law shall apply to the enforcement of a foreign judgment. CPR 74 expands on this, defining a foreign judgment as ‘any judgment given by a foreign court or tribunal, whatever the judgment may be called and includes:
- an order;
- a decision;
- a writ of execution or a writ of control; and
- the determination of costs by an officer of the court’.
Those wanting to enforce a foreign judgment in England and Wales should bring an application to recognise such in the High Court (King’s Bench Division). This judgment must be final and for a definite sum (but not for taxes, a fine or other damages). The leading Court of Appeal case, Joint Stock Company ‘Aeroflot-Russian Airlines’ v. Berezovsky and anr, held that a foreign judgment would be final and binding if it ‘would have precluded the unsuccessful party from bringing fresh proceedings in the [foreign] jurisdiction’.
Where the foreign court giving the judgment originally lacked jurisdiction (applying relevant private international law, or conflict of laws, principles as applicable in the UK), or where the foreign judgment was obtained contrary to public policy or fraudulently, that judgment will generally be unenforceable.
 CPR 70.1(2)(c)).
 CPR 74.2(c).
  EWCA Civ 20.
14 . What is the process for registration of foreign judgments and arbitral awards?
There are different regimes for the enforcement of foreign judgments, which will apply depending on the origin and date of the judgment.
1. Judgments from EU and European Free Trade Association (EFTA) states given in proceedings initiated before 31 December 2020: the European regime. Judgments issued in proceedings instituted before 31 December 2020 in EU Member States and Lugano Convention states can be enforced in the United Kingdom pursuant to:
- The Recast Brussels Regulation for judgments from EU member states given in proceedings instituted between 10 January 2015 and 31 December 2020.
- The 2001 Brussels Regulation for enforcement in the United Kingdom of judgments from EU member states given in proceedings instituted between 1 March 2002 and 10 January 2015.
- The 2007 Lugano Convention for the enforcement in the United Kingdom of judgments from Iceland, Norway and Switzerland given in proceedings instituted before 31 December 2020.
The enforcement of judgments from courts in EU and EFTA states in proceedings initiated after 31 December 2020 is determined by the 2005 Hague Convention (where it applies), the statutory regime or, in default, the common law rules.
2. Judgments from Hague Convention States. Regarding a judgment from the court of a country that has acceded to the 2005 Hague Convention on Choice of Court Agreements (EU member states, Mexico, Singapore and Montenegro), where the judgment was issued pursuant to an exclusive choice of court agreement, it will be recognised and enforced in England in accordance with the provisions of the Hague Convention.
3. Judgments from Commonwealth and some other countries: the statutory regime. The Administration of Justice Act 1920 (AJA 1920) provides for the registration and enforcement of money judgments given by the “superior” courts in certain states, including Bahamas, Barbados, Bermuda, British Virgin Islands, Cayman Islands, Jamaica, Malaysia, New Zealand, Nigeria, Sri Lanka and Zimbabwe. Judgments will be registered in England if the English court, in exercising its discretion, finds it just and convenient that the judgment should be enforced in England.
The Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA 1933) provides for the registration and enforcement of final and conclusive money judgments given in certain foreign states, including Australia, Canada, India, Israel, Norway and Pakistan. The United Kingdom also has bilateral enforcement treaties with Austria, Belgium, France, Germany, Italy and the Netherlands.
The foreign judgment must be registered with the High Court within 12 months after the date of the foreign judgment (or such longer period as may be allowed by the court) under the AJA 1920 and within six years from the date of the foreign judgment under the FJA 1933. The applicant must submit an authenticated copy of the foreign judgment, a certified translation (if necessary) and a witness statement.
Once the English court issues the order granting permission to register the foreign judgment, the applicant must then serve the order on the debtor.
4. The common law regime. As the default regime, the common law regime is available where there is no other means available.
The foreign judgment to be recognised and enforced at common law must be final, binding, conclusive and for the payment of a definite sum of money.
The party seeking enforcement must commence fresh legal proceedings within six years of the date of the foreign judgment to be recognised and enforced. The judgment creditor must file and serve Particulars of Claim on the judgment debtor. Service outside the jurisdiction may require permission from the court. Generally, the creditor will be able to obtain summary judgment (under CPR 24) on the basis that there is no real prospect of success as evidenced by the foreign judgment.
The Arbitration Act 1996 provides three routes for the enforcement of arbitral awards:
- Sections 100 to 104 of the Arbitration Act provide for enforcement of arbitral awards made in the territory of a state which is a party to the New York Convention. A New York Convention award may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. Enforcement simply requires the court to give judgment “in terms of the award” itself and does not permit a review of the award.
- Section 66(1) of the Arbitration Act provides that an award made by a tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. Where leave is so given, judgment may be entered in the terms of the award. Section 66 of the Act is mandatory and applies to domestic and foreign awards.
- It is also possible to enforce an arbitral award at common law by bringing a contractual claim for non-performance of the award. This is known as the “action on the award”.
An application is made to the High Court by way of an arbitration claim form (form n8), supported by the original arbitration agreement and award (or certified true copies), details of the claimant and defendant and must state the extent to which the award has not been complied with. The court may require service on the other side, who has a limited time in which they can apply to set it aside.
 CPR 74.3 to 74.10 and PD 74A.
 CPR 74.4(2) to 74.4(4).
 CPR 74.6(1).
 Limitation Act 1980, section 24(1).
 Section 101(2) of the Arbitration Act 1996.
 Ibid, section 101(3).
 Ibid, section 66(2).
 Ibid, sections 2(2)(b) and 4(1).
 Ibid, section 66(4).
 CPR 62.18(2).
15 . Once the judgment or award is registered, what are the available methods of execution?
Once a foreign judgment has been registered, or an English judgment is obtained in relation to that judgment, it has the same force and effect as an English judgment and enforcement proceedings can be brought in respect of it.
Under the AJA 1920 and the FJA 1933, the registration order must be served on the judgment debtor and the time limit to challenge the registration must have expired before the enforcement proceedings can commence. No steps can be taken to enforce the judgment if the defendant has made an application to set aside the order registering the foreign judgment.
Available methods of execution include charging orders, third-party debt orders, attachment of earnings order and insolvency procedures.
 CPR 74.9(1).
16 . What interim measures are available pending enforcement?
An English court may make an order for interim (or “provisional”) measures at any time, including before and during proceedings, and after a judgment has been entered. A number of different interim measures have been developed under English law to aid effective enforcement of both domestic and foreign judgments, including:
- orders regarding detention, custody, preservation, inspection, sampling, sale of or payment in respect of a property (including orders authorising the entry into any land or building);
- orders to deliver up goods;
- freezing injunctions;
- orders requiring the disclosure of property or assets; and
- search orders.
Outside of the CPR, English courts can order interim measures that have developed from case law, as well as the inherent jurisdiction of the court itself. For example, a Norwich Pharmacal order (established in the eponymous case of Norwich Pharmacal Co. v. Customs and Excise Commissioners) can be obtained by an applicant at any time during proceedings. These orders require a third party that has become involved in wrongdoing, or facilitated a wrongdoer, to disclose certain information or documents which may allow the applicant to identify or sue the wrongdoer and ultimately recover their losses.
A court may also grant an anti-suit injunction, restraining a person from continuing or commencing proceedings in a foreign jurisdiction, when justice requires it (for example, when such foreign proceedings interfere with the due process of the English court that has seised jurisdiction).
Interim measures granted by arbitral tribunals
As explained above, arbitral tribunals seated in England and Wales have the power to grant interim measures unless the parties have agreed otherwise. In such cases, both the arbitral tribunal and the English courts can grant interim measures. However, unlike the English courts, an arbitral tribunal will have no power to compel a party’s compliance with interim measures that it orders. Where an arbitral tribunal has ordered interim relief and the impugned party does not comply, an English court can impose sanctions on that non-compliant party.
 CPR 25.1(1)(c) and (d).
 CPR 25.1(1)(e).
 CPR 25.1(1)(f).
 CPR 25.1(1)(g).
 CPR 25.1(1)(h).
  2 All ER 943.