Understanding English Litigation and Arbitration: getting the best results Gillie 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