Litigation and dispute resolution

In a nutshell

Litigation solicitors assist clients in resolving civil disputes. Disputes can concern anything from unpaid bills or unfulfilled contract terms to problems between landlords and tenants, infringement of IP rights, construction-related claims, the liabilities of insurers, shipping cases, defective products, media and entertainment industry wrangles… the list is endless. And that’s just in the commercial sphere. The most common types of litigation involving private individuals are discussed at length in our personal injury overview.

If disputes are not settled by negotiation, they will be concluded either by court litigation or an alternative form of dispute resolution. The most common other methods are arbitration and mediation. The former is often stipulated as the preferred method in commercial contracts, and is essentially a private court, while the latter is generally achieved through structured negotiations between the parties, overseen by an independent mediator. These methods can still be problematic: arbitration is almost as expensive as litigating, mediation is not necessarily adequate for complex matters, and some argue that opponents can use alternative dispute resolution as a means of ‘bleeding’ money from each other or as covert interrogation.

Confusingly, there are two divisions of the High Court dealing with civil cases – the Chancery Division and the Queen’s Bench Division (QBD) – and each hears different types of cases. For instance, the Chancery Division handles matters relating to trusts, probate, insolvency, business and land law, while the QBD hears various contract law and personal injury/general negligence cases.

What lawyers do

• Advise claimants on whether they have a valid claim, and defendants on whether to settle or fight a claim made against them.
• Gather evidence and witnesses to support the client’s position; develop case strategies.
• Issue court proceedings or embark on a process of alternative dispute resolution if correspondence with the opposition does not produce a satisfactory result.
• Represent clients at pre-trial hearings and case management conferences.
• Attend conferences with barristers and brief them to conduct advocacy in hearings, trials and arbitrations.
• Attend trials, arbitrations and mediations with clients; provide assistance to barristers.

Realities of the job

• Work is driven by procedural rules and the timetable of the courts. Good litigators understand how best to manoeuvre within the system while also developing winning case strategies.
• The phenomenal amount of paperwork generated means that young litigators spend much of their time sifting through documents, scheduling and copying them in order to provide the court and all other parties with an agreed bundle of evidence.
• Litigators need to express themselves succinctly and precisely.
• Unless the claim value is small, the solicitor’s job is more about case preparation than court performance. Solicitor advocates are gaining ground, and once properly qualified they can appear in the higher courts. Nonetheless, barristers still dominate court advocacy and the performance of some solicitor advocates has been criticised by the judiciary.
• Trainee workloads largely depend on the type of firm and the type of clients represented. Big City firms won’t give trainees free rein on huge international banking disputes – they might not even go to court during their training contract – but they will be able to offer a small contribution to headline-making cases. Firms handling much smaller claims will often expect trainees to deal with all aspects of a case, from drafting correspondence and interim court applications to meetings with clients and settlement negotiations.
• There are a number of litigation-led law firms that handle cases of all sizes, and these present the best opportunities for a litigation-heavy training contract. The competition for litigation jobs at NQ level is fierce, so concentrate on litigation-led firms if you are certain of your leanings.
• The Solicitors Regulation Authority (SRA) requires all trainee solicitors to gain some experience working on disputes. People tend to learn early on whether they are suited to this kind of work. At big City firms, the SRA's Practice Skills Standards can be fulfilled by a litigation crash course. Experience in specialised areas, like real estate litigation and employment, can also satisfy the requirement.
• Despite a few firms starting up in-house advocacy units, the courts remain dominated by barristers, who are felt to have the edge when it comes to the skills and expertise needed to advocate. If you are determined to become both a solicitor and an advocate, certain areas of practice have more scope for advocacy – for example, family, crime, employment and lower-value civil litigation.

Current issues

October 2023

• Artificial intelligence is shaking up various legal practice areas, not least litigation. According to a Consilio survey, legal professionals predict that litigation analysis will be the second most heavily impacted legal task affected by AI after e-discovery. The key drivers for AI in UK litigation are managing data and litigation costs, the challenge of doing more higher-risk work with less resources, and judicial support for predictive coding and other tech measures. The key uses of AI in UK litigation include disclosure document review, predicting judgments and analysing data. If you haven’t jumped on the tech bandwagon, now is as good a time as any.
• Poised to fundamentally reshape the practice of law, AI possesses the unique ability to help advance complex litigation processes in addition to removing efficiency issues within the industry more generally. Time and cost reduction are perhaps the most notable advantages of AI within legal parameters, whilst the implementation of ECA in eDiscovery can aid lawyers in analysing data sets during legal cases to identify crucial information, leaving technology with a vital role to play in bringing about improved outcomes and decision-making.
• Recent developments in UK defamation law have involved new proposals to tackle SLAPPs (Strategic Lawsuits Against Public Participation). SLAPPs – essentially baseless lawsuits designed to deter critics by generating excessive legal costs – are ripe ground for abuse and corruption. There have been Concerns have been raised that wealthy and powerful individuals, with a number of Russian oligarchs specifically mentioned, were abusing this kind of claim. The government have been forced to respond to concerns and has proposed reforms, which has included a new statutory early dismissal process that will allow judges to immediately dismiss claims that lack sufficient merit.
• The emergence of Environmental, Social & Governance (ESG) is changing the way corporations are held to account for the impact of their supply chains, and in the UK, the courts are paving the way. Some recent examples of major ESG-related litigation cases include the High Court’s dismissal of ClientEarth’s claim against Shell’s board for their alleged neglect in tackling climate change, Greenpeace’s assertion of the UK government’s supposedly unlawful North Sea oil and gas extraction, in addition to American airline Delta facing accusations of ‘greenwashing’ through carbon offsetting. 
• As the severity of the climate crisis intensifies, climate-related litigation also grows. It is not just states that have been the target of climate-related litigation claims, with corporate entities and financial institutions also facing accusations of breaching human rights protections and cultural destruction. According to Norton Rose Fulbright, there have been 2550 recorded cases of climate change litigation cases this year as of May 2023, with the elevating number elucidated by the fact this is up from roughly 2419 in September 2022.  
• Crypto assets are becoming an ever-more important aspect of litigation, with an augmenting number of court decisions within this particular realm expected to continue throughout 2023. Tulip Trading v Van Der Laan is one such example of a major court case concerning litigation in recent times, whereby the court declared Tulip to have an arguable case that Bitcoin developers owe fiduciary duties to its users. The case ultimately reveals how courts are stamping their authority when it comes to tackling the challenges posed by digital assets and other blockchain technologies. 
• A recent piece of litigation that has ridden a publicity wave is Prince Harry’s lawsuit cases against the tabloids. Following accusations that The Sun newspaper illegitimately spied on him and his private life, The High Court ruled that the claim has been permitted to go to trial. However, the royal’s allegations of the newspaper’s phone hacking to uncover personal information, conversely cannot.