Procedural steps and timing

Australia

Australia

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim. 

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.  

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing. 

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.  

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months. 

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

Last modified 19 Jul 2019

Austria

Austria

Civil proceedings are generally initiated by a statement of claim (Klage) which must be filed with the competent court via an electronic filing system (WebERV). In certain circumstances, claimants must be represented by an attorney. This is the case in: (i) first instance proceedings at the Regional Court level; (ii) District Court proceedings involving an amount in dispute exceeding EUR5,000; and (iii) appeal proceedings. After the statement of claim is filed, the court will examine its jurisdiction in the relevant case. If the court considers the claim admissible, it will serve the statement of claim on the defendant and order it to file a written statement of defense within four weeks. The written statement of defense defines the scope of the subject matter and the specific issues in dispute. A written statement of defense is, however, not required in proceedings of first instance before a District Court. 

Once the exchange of pleadings is complete, the court usually summons the parties to a preliminary hearing (Vorbereitende Tagsatzung) within the next few weeks or months. In this preliminary oral hearing, the parties discuss the facts of the case and try to reach a settlement. The court may issue a judgment and close the proceedings after the preliminary hearing. However, usually there are subsequent evidential hearings, the number of which depends on the scope and complexity of the case. The dates for these further oral hearings are usually agreed between the parties and the judge at the preliminary hearing. 

The claimant is allowed to withdraw its claim without a waiver of claims before the defendant submits its statement of defense. Once the statement of defense has been filed, the claim may only be withdrawn with the consent of the defendant(s). However, if the claimant is willing to waive its claims, it may seek to discontinue the proceedings at any time before the trial or oral hearings are closed. The main consequence of such a discontinuance would be that the claimant must pay all costs already incurred in the proceedings. 

Monetary claims not exceeding EUR75,000 must be pursued in the form of a so-called default action (Mahnverfahren). If the claim meets the necessary conditions, the court will issue a conditional order for payment (Zahlungsbefehl) without hearing the defendant. The defendant then has the right to submit an objection within four weeks, otherwise the conditional order for payment will become legally binding. If the objection is raised within the specified timeframe, the payment order will become invalid and ordinary civil proceedings will be initiated.

Timeframes for each stage of proceedings vary considerably depending on the complexity of the case as well as the court and the parties’ availability. The court will exercise its case management powers to determine the procedure and timetable for the proceedings. The average duration of civil proceedings is around 6 months in the District Courts and 13 months in the Regional Courts.

The parties can, at any stage, agree to suspend (or stay) the proceedings by jointly notifying the court of an agreed suspension. The reasons for an agreed suspension can vary. For instance, parties may choose to stay proceedings in order to facilitate settlement negotiations or because a settlement has been reached. Save in the event of an agreed settlement, the proceedings can be resumed (i.e. the stay lifted) upon request of one party after a minimum three-month suspension.

Last modified 19 Jul 2019

Bahrain

Bahrain

Proceedings are conducted in Arabic and any documents submitted to the courts must be translated into Arabic by a locally licensed translator. 

The process of litigation is broadly similar across the Bahrain courts. Proceedings are commenced when a claimant submits an application to the competent court in the form of a statement of claim to the Case Registration Department. A hearing will then be scheduled with the claimant (usually within one week). On the day following the first hearing attended by the claimant, the competent court will send the defendant a summons along with a copy of the statement of claim. In the summons, the defendant will be directed to file a defense memorandum at least three days before the date of the upcoming hearing. 

Typically, the timeframe between the date of the summons being sent to the defendant and the parties’ first appearance in court is 8 days for matters before the Court of Minor Causes and 15 days for matters before the High Court or the High Court of Appeal. 

Where urgent proceedings have been requested, the Court for Urgent Matters (a court that sits at the same level as Court of Minor Causes and its jurisdiction is limited to contingent claims relating to civil matters) will usually give a 24-hour notice period for attendance unless the court believes that the matter is of such urgency that a shorter timeframe is merited. 

Timeframes for each stage of the proceedings will vary depending on the complexity of the case and whether the court has appointed an expert. Furthermore, there are no formal deadlines by which cases must proceed.  

With the above in mind, cases before:

  • the Court of Minor Causes and Court of Execution will take approximately three to six months from commencement up to judgment; 
  • the High Court will take approximately three to six months from commencement up to judgment;
  • the High Court of Appeal will take approximately two to four months from commencement up to judgment;
  • the Court of Cassation (in respect of civil matters) will take approximately 12 months from commencement up to judgment;
  • the Lower Shari’a Court will take approximately three to six months from commencement up to judgment;
  • the Higher Shari’a Court will take approximately three to six months from commencement  up to judgment;
  • the High Shari’a Court of Appeal will take approximately three to six months from commencement up to judgment; and
  • the Court of Cassation (in respect of Shari’a matters) will take approximately 18 months from commencement up to judgment.

The timeframes provided above assume that: 

  • the issues in dispute are limited to legal and factual issues;
  • the court has not appointed an expert; and
  • notification of the proceedings does not become protracted.

Litigants are not required to be represented by an attorney before any of the courts. At each hearing (before any of the courts), the parties themselves and/or their authorized representatives can appear.

Last modified 19 Jul 2019

Belgium

Belgium

Representation by an attorney in civil proceedings is not mandatory. Civil proceedings are typically commenced by a writ of summons being served on the adverse party. The writ of summons is, at the same time, registered with the court. Within a few weeks of service of the writ of summons on the defendant, parties to simple or undisputed cases will be heard at an introductory hearing and not be required to submit written pleadings to the court. The judge will usually render a judgment on the matter shortly after the introductory hearing. 

If the case is complex or disputed, the merits of the claim will not be heard at an introductory hearing. Instead, the parties to this type of case will seek to agree the dates for the exchange of written pleadings and also the date for the main hearing. In practice, the parties usually agree how long the main hearing should be, they contact the court to ascertain the court’s first available date for the main hearing and then they decide the schedule for the exchange of written pleadings by reference to the date for the main hearing. Should an agreement not be reached, the court will decide on these matters. On average, parties usually file one to three sets of written pleadings each. The length of time required to exchange pleadings is determined by the parties and varies from case to case, depending on the complexity of the case and the court’s availability.

Following the exchange of written pleadings, the case will be pleaded orally at the main hearing. Oral pleadings are important to explain the position of the parties to the court and to focus on specific issues. In practice, an oral pleading allows the parties to emphasize what they deem to be important. At this hearing, the judge may raise an issue referred to in the written pleadings which they feel is relevant for the final judgment. A hearing offers those present the opportunity to respond to this and, if needed, to request the opportunity to submit additional written pleadings. While the oral hearing is important for these reasons, the court will only take into consideration the arguments listed in the written pleadings. In principle, the court will render the judgment one month following the date of the oral hearing. This may, however, be postponed if the case is important or complex. 

The timeframe for proceedings depends on the court with jurisdiction and its location. Before the Tribunal of First Instance, the average duration for a straightforward case is one to two years, although it is common to have longer timeframes for complex cases. 

The language of the proceedings is subject to strict regulation. In civil, commercial and labor law matters, proceedings are conducted mainly in French or Dutch depending on the territorial location of the court. In criminal cases, the language of the defendant is the main consideration when determining the language of the proceedings. Whilst most cases are heard in French or Dutch, proceedings in courts located in the German-speaking areas of Belgium will be heard in German.

Last modified 19 Jul 2019

Brazil

Brazil

Only the federal government may legislate on civil and commercial procedures. The Code of Civil Procedure, enacted in 2015, is applicable to civil litigation proceedings and other matters for which no specific procedural rules exist. The Brazilian Federal Constitution limits trial by jury to criminal cases involving homicide. 

As a general rule, representation by an attorney in civil proceedings is mandatory in Brazil. The only exception relates to lawsuits filed with the Small Claim Courts by individuals seeking to recover:

  • in State Courts, an amount below the equivalent of 20 times the minimum wage; or
  • in Federal Courts, an amount below the equivalent of 30 times the minimum wage.

The current minimum wage in Brazil (2019) is BRL998 (approximately USD257).

Civil lawsuits are initiated when the plaintiff files a petition in the relevant court. The plaintiff must serve the respondent with the filed petition and such service must take place at least 20 business days prior to a mandatory conciliation hearing, which the respondent is required to attend. This mandatory hearing:

  • will take place before the court; and
  • shall be scheduled at least 30 days in advance.

Should the parties fail to reach an agreement at the mandatory hearing, the respondent must file its defense within 15 business days of the date of the conciliatory hearing. 

The judge may discharge the parties of their obligation to attend a mandatory conciliatory hearing. If this happens, the respondent must file a defense within 15 business days after it is served with the notice of the parties being discharged of the obligation to attend a mandatory conciliatory hearing. In cases where there is more than one respondent, the beginning of such term is the day after the last respondent is served.

After the respondent files a defense, the plaintiff has 15 business days to reply to the respondent’s allegations. 

The parties have five business days, counting from the day of the decision granting them the opportunity to present evidence, to inform the court of the evidence they wish to rely on. Timeframes for this evidence presentation phase may vary depending on the complexity of the matter. 

Finally, after the evidence presentation phase, the judge may grant the parties the opportunity to file their closing arguments before rendering a judgment. 

The usual total timeframe for a lawsuit to be ruled upon depends mainly on the complexity of the case, the relevant court competent for judging the case, the evidence the parties want to present and the number of appeals the parties decide to file. It may range from five months (in lawsuits in which it is not necessary to present any evidence) to three years, in accordance with the table below:

Initial term Final term Number of days / months / years
Service Mandatory conciliatory hearing 40 business days
Mandatory conciliatory hearing Defense 15 business days
Defense Decision granting opportunity for reply 1 month
Decision granting an opportunity for reply Reply 15 business days
Reply Decision granting opportunity for requesting evidence production 1-2 months
Decision granting opportunity for requesting evidence production Petition requesting evidence production 5 business days
Petition requesting evidence production Beginning of evidence production phase 1-2 months
Beginning of evidence production phase Closing of evidence production phase 1-2 years
Closing of evidence production phase Decision granting opportunity for closing arguments 1-2 months
Decision granting opportunity for closing arguments Closing arguments 15 business days
Closing arguments Judgment 1-2 months

Last modified 19 Jul 2019

Canada

Canada

The sequence of a legal proceeding is similar across Canadian jurisdictions. A plaintiff initiates a proceeding by drafting a claim and then having the claim issued by the court. The plaintiff must then take steps to personally serve the issued claim on all defendants in the action. Any defendant who wishes to then defend the proceeding must serve a defense. While there are variations among jurisdictions, a defendant’s defense is generally due within 20 days after service of the plaintiff’s claim, provided that the defendant was served within the territorial jurisdiction of the court that issued the claim. If the defendant was not served within the territorial jurisdiction of the court that issued the claim, the defendant is permitted more time in which to serve a defense. In the province of Ontario, for example, a defendant served outside Ontario but in Canada or the US has 40 days to serve a defense, while a defendant served outside of Canada and the US has 60 days. It is not uncommon for the parties to agree to extend the time by which a defendant must serve a defense where the defendant can point to extenuating circumstances (e.g. the complexity of the case, difficulty in retaining counsel, etc.).

In addition to defending the plaintiff’s proceeding, defendants may also bring: 

  •  a counterclaim against the plaintiff (i.e. where the defendant has an independent cause of action against the plaintiff, or seeks some relief in the proceeding other than the mere dismissal of the action, such as a declaration as to the parties’ rights and obligations);
  • a crossclaim against another defendant (i.e. a claim for contribution and indemnity against another defendant in the event that the cross-claiming defendant is found liable to the plaintiff); or
  • a third-party claim (i.e. a claim in which a defendant seeks contribution and indemnity from a party that is not yet a party to the litigation). 

The plaintiff’s claim and the defendants’ defenses, counterclaims, crossclaims, and third-party claims are known as the pleadings. The pleadings define the scope of the dispute among the parties. 

The length of a proceeding will be, among other things, a function of the complexity of the case, the number of parties involved, the volume of documents and the conduct of the parties (e.g. whether a plaintiff advances a case with diligence and/or whether a defendant seeks to delay proceedings). That said, a general timeline for a legal proceeding of moderate complexity is as follows:

  • service of claim: (D);
  • delivery of pleadings: d + 2 months to 4 months; (* See note below)
  • exchange of documents: D + 8 months to 12 months;
  •  completions of examinations for discovery: D + 15 months to 24 months;
  • motions regarding discoveries: D + 24 months to 30 months;
  • mediation (if required/applicable): D + 30 months to 36 months; and
  • completion of trial: D + 36 months to 48 months. 

Generally, individuals may, as of right, represent themselves in legal proceedings. Exceptions to this general rule include individuals who are minors, who are representative parties in a class action proceeding, or who lack mental capacity. A corporation typically must be represented by a lawyer (which includes an in-house lawyer) unless the corporation obtains leave of the court to represent itself (e.g. to be represented by an officer, director, or shareholder of the corporation). 

* Note: For example, if the claim were served on January 1 ("D") of any given year, all subsequent pleadings would typically be delivered between March 1 (i.e. D + 2 months) and May 1 (i.e. D + 4 months) of that same year.

Last modified 19 Jul 2019

Chile

Chile

Civil and commercial procedures are, by the Code of Civil Procedure, applicable to civil litigation proceedings and other matters for which no specific procedural rules exist. Trials by jury do not exist in our system and all controversies are resolved by a judge or by a Commission. 

All proceedings are initiated by a claim or interim relief, which must state the general law applicable and the facts from where the conflict arises. As a general rule, representation by an attorney in civil proceedings is mandatory. 

In the ordinary procedure, the plaintiff must serve the defendant with the filed petition but has no mandatory period to serve it. The defendant can file a response, and eventually a counterclaim within  15 days, or more, depending on where the claim is served. Afterwards, the plaintiff is entitled to reply and the defendant to counter-reply, and these writs must be filed within six days of the counterparty writ being served. This stage is known as the discussion stage. With the final writs of this stage being served, the court must summon a mandatory conciliatory hearing that:

  • will take place before the court; and
  • shall be scheduled in a specific time frame that cannot surpass 15 days after the court has informed the resolution that summons both parties to the mandatory conciliatory hearing.

In case the parties fail to reach an agreement at the conciliatory hearing (it is very rare that parties reach an agreement at this stage), the judge can choose between sentencing or receiving the next stage, the probationary or evidence stage. 

This stage begins with a judge’s resolution establishing the matters that need to be proven by the parties. 

The parties have five business days, counting from the notification of the judge’s resolution, to submit a list of any witnesses they wish to rely on. The timeframe for this evidence presentation phase may vary depending on the territory in which it is going to be submitted, but the minimum for this type of procedure is 20 days. It could be longer if an obstacle impedes submitting evidence or when certain evidence must be retrieved or rendered in a foreign jurisdiction. 

After the evidence presentation phase, the parties have the opportunity to file their closing arguments within a 10 day period. Before rendering judgment, the Court might consider it necessary to request further evidence. 

The timeframe between the claim file and judgment will always depend on the complexity of the case and the disposition of the counterparty to cooperate. It may take from nine months to two or three years. 

There are many special procedures for specific matters that modify these rules.

Last modified 14 Jan 2020

China

China

In the PRC, parties are not required to be represented by an attorney in order to commence civil proceedings. Generally, a civil lawsuit is commenced by filing a statement of claim. The statement of claim must set out the cause(s) of action and claim(s), and needs to be supported by documentary evidence. The court has seven days to review the statement of claim and its supporting evidence and decide whether or not to accept the case. Where the case is accepted, the court will serve a copy of the statement of claim on the defendant within five days of accepting and this will constitute notice of the claim. Generally, the defendant must file its statement of defense with the court within 15 days of receipt of the notice of the claim. The time limits may differ if a party to the lawsuit has no domicile in the PRC (for example, a defendant who has no domicile in the PRC has 30 days to file its statement of defense). The court will then send a copy of the statement of defense to the claimant within five days of receiving it.

The court will also set a period for the submission of evidence. During this period:

  • all evidence should be submitted;
  • the defendant is entitled to file counterclaims (if any); and
  • both parties are entitled to submit a written application (before the period expires) for an extension of time.

An oral court hearing (a trial) will then be scheduled and the timing of this will depend on the court’s workload. The parties will be notified three days before the hearing. The court hearing usually includes two parts: (i) the investigation of the facts; and (ii) the presentation of arguments. During the investigation of the facts, the parties present their own case and present evidence, including oral evidence given by factual witnesses. The evidence is cross-examined by the other party and is also examined by the court. The presiding judge will then summarize the issues in dispute and the parties will put forward their respective further arguments on those issues. The law clerk will prepare a transcript of the hearing.

A judgment must be given within six months of the court’s acceptance of the case and can be given at the end of the oral hearing. The time limit to issue the judgment can be extended for six months with the approval of the court’s president, and the court may seek further extensions from a higher court. A simple civil claim to which ordinary procedure applies and in respect of which no extensions are sought is generally resolved within six months of the court’s acceptance of the case.

Last modified 19 Jul 2019

Finland

Finland

Ordinary civil law cases are initiated by filing a written application for a summons with the District Court registry. Following receipt of the application by the registry, the case becomes pending. To the extent possible, the application for a summons should indicate:

  • the specified claim of the plaintiff;
  • the circumstances on which the claim is based;
  • claim for compensation of legal costs; and
  • the evidence that the plaintiff intends to present.

If the matter is not in dispute and relates to a debt of a specified sum, the application for a summons only needs to include the circumstances on which the claim is based. In this situation, there is no need to identify or include the evidence in the application.

After receiving the application for a summons, the court will issue a summons which will need to be served on the defendant by mail or by bailiff. The plaintiff can serve the summons on the defendant where: (i) the plaintiff asks to be entrusted with the service of a notice; and (ii) the court deems there to be good reason the summons to be served by the plaintiff. The serving process usually takes at least a few weeks, and there is no specific deadline to serve the summons to the defendant. After service of the summons, the defendant is then usually granted a period of 30 days to file their statement of defense, although this period can be extended at the defendant’s request for example, to allow the defendant sufficient time to prepare the defense. Following the filing of the statement of defense, the court may request that the parties each provide the court with a written statement outlining the exact issues that are in dispute (i.e. the plaintiff will set out the issues it disputes from the statement of defense, and the defendant will set out the issues it disputes from the plaintiff’s written statement). The submission of these written statements (if requested) completes the written phase of the proceedings.

The oral phase of the proceedings will then begin, which will start with a preparatory hearing where issues relating to the preparation of the hearing will be discussed, and after which an oral hearing will be scheduled. Timeframes vary greatly and depend on various factors, including the complexity of the case and the workload of the court. In general, in a straight forward civil law case, the time from filing the application for a summons until obtaining a judgment varies between 12 to 24 months.

It is not mandatory to use an attorney or counsel in court proceedings, except in circumstances when a party applies for annulment of a judgment or files a complaint on the basis of a serious procedural error in the Supreme Court. In the event that a party decides to use counsel, only an advocate (a member of the Bar), a public legal aid attorney or counsel who has obtained the license referred to in the Licensed Counsel Act (715/2011) are entitled to act as counsel. Further, a layperson may act as counsel in non-contentious civil matters. Finally, in-house counsel may represent their employer.

Last modified 19 Jul 2019

France

France

In general, the court that has territorial jurisdiction to hear a civil claim is the court of the defendant’s domicile. Exceptions to this rule may apply in certain contract or tort law matters. Representation by an attorney is mandatory before the High Court but it is not necessary for claims before the district courts, the Commercial Courts and the Labour Courts.

In order to initiate proceedings, a claimant must serve a writ of summons on the defendant. A writ of summons needs to be delivered to the defendant by a bailiff within the relevant limitation period. The writ of summons must substantiate the claim and be supported by relevant exhibits. After the summons has been served, the court will usually schedule a procedural timetable for the exchange of pleadings between the parties. The number of exchanges depends on the complexity of the case but, on average, the parties exchange two rounds of submissions and the defendant is generally allowed to file the last submission. Once each party has had an opportunity to present its arguments, the dates for:

  • the closing of the exchange of the pleadings; and
  • a trial hearing for oral arguments will be scheduled.

Based on our experience, the average duration of a case before the first instance courts (both civil and commercial) is around one year. However, for complex matters requiring three or more rounds of submissions from each party and / or giving rise to procedural issues (e.g. issues in respect of document production), a case may last between 18 and 24 months, and sometimes longer. The workload of the court may also impact the length of the proceedings.

Last modified 19 Jul 2019

Germany

Germany

Legal representation is mandatory in all courts apart from the Local Courts (Amtsgerichte). The court's jurisdiction may be based on several factors which are connected to the dispute but, generally, the court of the defendant's domicile is competent to hear the case.

German civil actions begin with the filing of the statement of claim at the competent court (section 253 German Code of Civil Procedure, ZPO). The statement must identify and substantiate the claim. The statement of claim is served on the defendant by the court ex officio after it is filed. Service on the defendant can take several weeks. An advance covering the first instance court fees is generally required before the court serves the complaint. After the defendant receives the statement of claim, the court will usually schedule a court hearing. Prior to the hearing, there is typically one further round of pleadings exchanged by the parties. The timing of the hearing depends on the court's workload.

On average a straightforward case will take ten months from serving the statement of claim until a judgment is issued. However, they can last much longer than ten months, especially when the facts are disputed and have to be established by the court. In around 30% of cases, court proceedings are discontinued in less than three months.

Last modified 19 Jul 2019

Hong Kong, SAR

Hong Kong, SAR

It is not mandatory for a party in any legal action in Hong Kong to have legal representation. Where the party is a corporate entity, a natural person (such as a director or officer of the entity) may be appointed with the permission of the court to act on its behalf in the legal action.

In general, the claimant would have to file a writ of summons with the relevant court to start a civil action in Hong Kong.

Once the writ of summons has been duly served on the defendant, the defendant must acknowledge service within 14 days (or, generally, 28 days if the defendant is served outside of Hong Kong with the court’s permission) and state whether it intends to defend the action. The parties will then exchange pleadings (such as statements of claim (if not already served together with the writ of summons), defenses, and replies) which define the parameters of the dispute and the specific issues which are to be proved by each party. If a statement of claim was not served together with the writ of summons by the claimant, the claimant will need to file and serve it within 14 days of the filing of the defendant’s acknowledgment of service and notice of intention to defend the action.

If the statement of claim was served together with the writ of summons by the claimant, the defendant has 28 days after the deadline for the filing of its acknowledgment of service to file and serve its defense. Otherwise, the defendant has 28 days after the relevant statement of claim has been served by the claimant to file and serve its defense. Thereafter, the claimant has 28 days to prepare its reply. In general, timelines prescribed by the rules of the court can be extended either by application to the court or through consent of the parties (without any application to the court). 

Once the exchange of pleadings is complete, parties will undertake the disclosure process and go on to prepare their evidence (which includes witness statements and, if applicable, expert reports) for a final hearing of the dispute. Parties are generally obliged to attend court at regular intervals during which orders are given to manage the conduct and timeframes of the case up until its final hearing.

The timeframe from the commencement of proceedings to handing down of judgment varies greatly depending on the complexity and case management style of an individual matter. Usually, relatively straightforward cases are ready to be set down for trial within two years from the commencement of proceedings. Complex cases, however, may take longer before they can be set down for trial.

Last modified 19 Jul 2019

Hungary

Hungary

Legal representation is mandatory before the general and appellate courts, and the Curia. In particular, when the general courts have first instance jurisdiction, the statement of claim has to be submitted by an attorney.

The new Code of Civil Procedure, which came into force on January 1, 2018, introduced a two-phase procedure in civil and commercial cases. First, there is a preparatory phase, followed by a phase on the taking of evidence.

In the preparatory phase, the statement of claim is submitted to the competent court by the claimant. The court then examines the statement of claim within 30 days. Provided the statement of claim satisfies the formal requirements and does not require clarification, the court then serves it on the defendant. Following service, the defendant has 45 days to submit a written defense. If the court deems it necessary, the parties may exchange a further round of briefs.

A preparatory hearing may be held at the request of one of the parties, or if the court deems it necessary. The purpose of the preparatory phase is to define the scope of the dispute, the facts and the evidence proposed by the parties. No taking of evidence or decisions on the merits happen during this phase. Throughout the litigation, the court informs the parties of their procedural rights and obligations. The court is now also obliged to provide material guidance to the parties to contribute to the efficient conduct of the proceedings, for example, by notifying a party if there is a contradiction in its statements, or if the court interprets the law differently to that party. 

The preparatory phase is closed by an order of the court. After this order has been issued, parties are not generally permitted to change their claims, arguments, facts or evidence. 

The second phase relates to the taking of evidence. Hungarian law follows a free system of evidence, which means that the parties may freely submit any type of evidence. Parties may also invite the court to summon witnesses, retain an expert or consider an expert opinion. Expert opinions may be given by a private judicial expert appointed by one of the parties, or by a court-appointed judicial expert. In the former case, the expert still has to be impartial and independent and is also obliged to answer the questions and consider the statements of the other party. There is no difference in evidential value between expert opinions made by private and court-appointed experts. 

The court will render its final judgment at the end of the evidence phase and may schedule as many hearings as it deems necessary during that phase. In most cases, one to four months elapse between each hearing. On average, cases take between 8 to 25 months in the first instance. However, complex cases which require extensive expert evidence may last even longer.

Last modified 19 Jul 2019

Italy

Italy

Legal representation for civil proceedings is mandatory except for disputes:

  • for which the giudice di pace is competent. The giudice di pace is a judge of first instance who is competent for disputes below a given (low) value and / or disputes concerning specific subject matters; and
  • where the amount in dispute either (i) does not exceed EUR1,100; or (ii) exceeds EUR1,100 but the giudice di pace, in light of the nature and amount of the dispute, expressly authorizes that a party does not need to be represented by an attorney.

Writ of summons

In Italy, civil proceedings are commenced when the claimant serves a writ of summons, through the use of a bailiff, on the defendant.

The writ will summon the defendant to appear at the hearing on the date indicated by the claimant in the writ itself. The writ shall also contain the following information:

  • details of the court before which the claim is filed;
  • all the relevant information required to identify the plaintiff and the defendant;
  • the object of the claim;
  • the description of the factual and legal grounds of the claim and the relative conclusions;
  • a specific indication of the evidence which the plaintiff intends to offer or request in the proceedings (for example, a party may request that witnesses are heard on specific topics or an expert is appointed by the court) and, in particular, an indication of the documents which the plaintiff exhibits with the writ of summons;
  • the name and last name of the lawyer(s) and the power of attorney;
  • an invitation to the defendant to file its statement of defense and to appear at the hearing, with the warning that, where the defendant intends to: (i) raise a counterclaim; (ii) join a third party to the proceedings; or (iii) raise objections based on procedural deficiencies or merit that the judge cannot raise ex officio, it must file its statement of defense at least 20 days before the date of the first hearing. Conversely, where the defendant does not wish to pursue (i) to (iii) above, it may file the statement of defense directly at the first hearing.

The first hearing

Between the date of the first hearing and the date of the service of the writ of summons on the defendant, there must be a term of at least 90 days (if the place of service is in Italy) or 150 days (if the place of service is abroad). When setting the date of the first hearing, the claimant must ensure it complies with these terms. Otherwise, the court shall declare the writ of summons null and void. Although the claimant schedules the first hearing, and indicates the date in the writ of summons, the judge may postpone the date of the hearing ex officio depending on their backlog and / or calendar. The postponement should not exceed 45 days compared to the date scheduled by the claimant. These terms are not always respected and it is likely that the postponement is longer than 45 days.

The first hearing is used to verify the preliminary procedural issues, such as the successful service of the writ of summons on all parties and the capacity of the claimant to bring the claim. The judge may also use this as an opportunity to explore the possibility of an amicable settlement between the parties.

After the first hearing and at any of the parties' request, the judge will grant the parties three consecutive terms (a first term of 30 days from the date of the first hearing or any subsequent date that the judge deems appropriate, then a term of a further 30 days and a last term of 20 days), identical for both parties, to simultaneously: (i) file supplemental written submissions particularizing or modifying the prayers for relief and the objections outlined in the writ of summons and / or in the statements of defense; and (ii) supplement the evidence requests that they made, respectively, in the writ of summons and in the statement of defense.

Once these three further submissions have been made, two different scenarios can be envisaged. The first of these is that, if the judge deems the dispute ready to be decided, the hearing for the submission of the parties' final prayers for relief is immediately scheduled. Alternatively, if the judge does not deem the dispute ready to be decided, a hearing is scheduled to decide on the acceptance or dismissal of the evidence requested by the parties. The judge will decide on these issues at the hearing and then the evidence-taking phase begins.

The taking of evidence

Where the judge does not deem the dispute ready to be decided, the judge establishes the timing, place and method of the taking of evidence. For example, if witness testimony is admitted, the judge will schedule a hearing for the witness(es) to render their testimony. If the taking of evidence should be accomplished outside the court's district, the judge delegates a judge in the relevant location, unless the parties jointly request, and the president of the tribunal agrees, that the judge shall move to that location for accomplishing the taking of the evidence. This is seldom the case.

The judge taking the evidence decides (by issuing the relevant order) all the issues that arise during the evidence-taking phase. The taking of evidence is recorded into minutes, drafted under the judge's supervision.

Once the evidence-taking phase is concluded, the hearing for the parties to submit their final prayers for relief will be scheduled.

The final hearing

The hearing for the parties to submit their final prayers for relief will usually take place between one and two years after the decision of the judge that the dispute is ready to be decided or after conclusion of the evidence-taking phase. The parties are then given 60 days (or a shorter period that should not be shorter than 20 days) from the date of the hearing to file their conclusive briefs and a further 20 days for the reply briefs.

The judge's decision is issued approximately five months after the date on which the parties file their reply briefs. The decision is temporarily enforceable, notwithstanding any appeal. The appeal judge may stay in whole or in part the enforceability or the execution of the challenged judgment, with or without a bond. However, the judge may only grant a stay upon receipt of a motion filed by one of the parties with the main appeal or with the incident appeal, when there are serious and well-grounded reasons to do so and also with reference to the possibility that one of the parties may become insolvent.

The average length of first instance proceedings is approximately 36 months.

Debt collection

In addition to ordinary proceedings, there is a simplified judicial procedure mainly aimed at commercial debt collection. Such debt collection is obtained through the issuance of a payment injunction (Decreto Ingiuntivo) by the competent court. The procedure applies to debts which are:

  • quantified in their amounts;
  • due and payable (i.e. liquidi and esigibili); and
  • supported by written evidence.

As part of this simplified judicial procedure, the judge normally proceeds, without the knowledge of the alleged debtor, to a brief assessment of the documentation filed. Where the legal requirements referred to above are met, the judge will issue an order for payment which becomes enforceable if the debtor fails to oppose it within 40 days (where the debtor is situated in Italy) from receipt of service of a certified copy of the order (or 50 days where the debtor has its registered office elsewhere in the EU and 60 days in all other cases). If the debtor serves the creditor with an opposition in the form of an ordinary writ of summons with the specific indication that it is aimed at opposing the order, the proceedings will follow the ordinary procedural steps and timings referred to earlier in this section. Even where an opposition is served, provisional enforcement of the judgment may be granted if certain legal requirements are met.

Last modified 19 Jul 2019

Ireland

Ireland

There is no general mandatory pre-action protocol (except for personal injuries cases). However it is standard practise for the parties to engage in pre-action correspondence before proceedings are commenced (and there can be cost consequences for failure to do so). In addition, a plaintiff’s solicitor is obliged to advise their client on the possibility and advantages of mediation before a claim can be filed.

High Court proceedings are commenced by the plaintiff filing an originating summons and serving it on the defendant. The originating summons is a brief document and does not set out the full details of the claim.

The defendant must then file an appearance (a short, one-page document confirming that it intends to defend the claim) at the court office within eight days of the originating summons. If the defendant does not enter an appearance, the plaintiff can seek judgment in default of appearance.

The plaintiff serves a statement of claim setting out the relevant facts and the basis for its claim. This can be served up to 21 days after the appearance (and failure to do so can allow the defendant to petition the court to strike out the claim).

The defendant serves its defence within 28 days of the statement of claim (although in practice a defendant may seek to defer serving its defence, e.g. by issuing a notice to the plaintiff requiring it to provide further particulars of its claim). Failure to deliver a defence can enable the plaintiff to seek judgment in default of defence for the entire amount of the claim.

Once the parties have exchanged these pleadings, they engage in discovery. This begins with voluntary requests for discovery specifying categories of documents to be provided, and setting out reasons for each category. The requesting party must show that the documents are relevant and necessary. If the parties cannot agree on discovery, the court issues an order for discovery.

In the Commercial Court, the parties will exchange expert reports and witness statements. This is not automatically done in regular High Court proceedings (but can be ordered by the High Court in the course of dealing with pre-trial motions or applications to the court to determine directions on timelines and other pre-trial issues).

Timelines can generally be extended by consent or with the court’s permission (but the court also has the power to impose cost consequences). As noted, the Commercial Court adheres to a stricter case management system.

The standard of proof in civil cases is the balance of probabilities.

The length of time for proceedings in the High Court from start to finish will usually be between one and two years (with Commercial Court cases generally being disposed of more quickly, within 12 months).

In Ireland, legal representation is mandatory for companies in proceedings, however, an individual may elect to represent themselves.

Last modified 27 May 2021

Japan

Japan

A civil claim is commenced by a claimant filing a petition together with supporting evidence. A petition must specify the parties and contain particulars of the claim, as well as a statement specifying the relief sought. Revenue stamps of a certain value must be affixed to the petition as a filing fee. Once a petition and a writ of summons are served on the defendant, the defendant is required to file a written answer within the period stipulated by the court, which is commonly 40 to 50 days. A party is not obliged to be represented by an attorney. In other words, a party is allowed to initiate or respond to a claim without appointing an attorney.

Thereafter, several preparatory proceedings will be held in order to clarify core issues in the case and both parties will submit documentary evidence to the court and make oral arguments. Court hearings in a case are usually held every one or two months. Witnesses are generally examined after the parties have submitted documentary evidence and made oral arguments. Once all of the evidence has been examined, a judgment will generally be rendered within two months. In first instance cases, judgment is typically given within less than twelve months from the petition being filed.

Labor, or employment, cases are another important type of legal dispute. There are two basic types: individual employment cases, which are between an employer and an employee, and collective employment cases, which are between an employer and a union. In April 2006, Japan introduced the Labour Adjudication System for individual employment cases. Under this system, three adjudicators (one serving as judge and one each representing the interests of the employer and the employee respectively) form a Labour Adjudication Committee that endeavors to resolve the dispute in no more than three sessions by providing mediation or adjudication. The objective of this system is to resolve cases quickly, appropriately and effectively. Cases which are not resolved under this system are referred to ordinary judicial proceedings.

Last modified 19 Jul 2019

Kuwait

Kuwait

The first point to note is that all documents must be submitted in Arabic. Further, it may be necessary for documents that are being translated to be officially translated through the courts.

The procedures for initiating a civil or a commercial claim are essentially the same. Generally, court actions are initiated in Kuwait by the plaintiff. Legal representation is not mandatory in civil cases. However, if a party choses to be represented by counsel in civil proceedings, the legal representative must be a Kuwait qualified lawyer. A claim is initiated by submitting a statement of claim (with supporting documents) to the court clerk for the relevant court. The court clerk is required to maintain a copy and to refer the original to the Clerks Department to effect service on the defendant(s) usually between five to ten days depending upon the nature of the court circuit the claim is entertained by. After the statement of claim is properly served on the defendant, the defendant will have to respond with a statement of defense (which may include jurisdictional objections, procedural and substantive defenses, whether in the form of denials or of affirmative defenses or counter claims) with any applicable supporting evidence. The statement of defense must be filed before the date of hearing annotated on the service document.

If there are factual issues in dispute, either party may apply to the court to appoint an expert to test that evidence (or if it deems it appropriate the court itself will appoint an expert). Only if satisfied of the need for an expert will the court agree to such a request. The Ministry of Justice has a panel of experts in various fields which assist the court in cases which involve technical, factual or financial matters. The Ministry has a right to assign the external experts to test evidence. Usually, such experts are professors from Kuwait University.

A single expert or panel of experts may be assigned to a case, depending on the size of the claim and/or the complexity of the case. The designated expert(s) meets with the parties in an inquisitorial manner, and they are required to make a series of submissions and to produce evidence in support of their submissions, before the expert then provides a report to the court. It is wholly at the court’s discretion whether to accept the expert report. Generally the court will then issue a decision with facts based on those provided in the expert’s report. The court’s decision may be appealed to the Court of Appeal, which in turn may also refer the case to the Experts’ Department for fact finding. Upon the issuance of the Court of Appeal’s judgment, only points of law can be appealed to the Court of Cassation (Kuwait’s highest court).

While it is not possible to anticipate the duration of proceedings with any degree of certainty, it is commonplace for complex commercial disputes (such as those relating to engineering and construction) to take two or three years in the lower courts before final judgment. If an appeal is made to the Court of Appeal, an appellant may wait up to a year for a judgment to be handed down and if that judgment is further appealed to the Court of Cassation, this final review may be pending for a further two years. This makes it not uncommon for commercial legal proceedings in Kuwait to span six or seven years.

Last modified 19 Jul 2019

Mexico

Mexico

The process of litigation is almost the same across state and federal courts. Representation by a lawyer is not mandatory; lawsuits can be filed directly by the claimant. Proceedings are started (the introductory stage) when the plaintiff files a claim in the relevant court. The defendant then has 5 to 15 days to file the defense and, if appropriate, a counterclaim.

The next stage is the evidentiary stage, once parties have been notified of the commencement of this stage, they have ten days (starting from the day after such notification) to propose evidence. The court has discretion to admit the evidence offered by the parties. If the court allows it, evidence is submitted by the parties. The submission of evidence may take place over the course of several hearings, depending on the circumstances of the case.

The third stage is the conclusive stage in which the parties submit their written closing arguments.

After the conclusion of closing arguments, and generally within a ten-working-day period, the court must issue a judgment which resolves the case at first instance. The duration of the first instance may vary depending on the complexity of the case. A straightforward civil lawsuit may last from one to two years.

Last modified 19 Jul 2019

Netherlands

Netherlands

An ordinary civil lawsuit in the Netherlands starts with a writ of summons. In the regular district courts, representation by an attorney admitted to the Dutch bar is mandatory. The writ contains the claim as well as its substantiation. The writ needs to be served onto the defendant by a bailiff, and this process may take at least one week. At the court date mentioned in the writ, the writ needs to be submitted to the court, along with evidence in the form of documents. The defendant is then granted a period of six weeks for filing its statement of defense. After this, usually an oral court hearing will be scheduled. The timing for the entire proceedings heavily depends on the court’s workload. However, in a straightforward civil lawsuit, the time from serving the writ until obtaining a judgment will usually be approximately 12 to 18 months.

The proceedings can, of course, be of complex nature and timeframes for each stage of proceedings vary greatly depending on the complexity of the case. A claim for damages, witness or expert hearings and requests for the submission of documents are examples of complications that may cause proceedings to take longer. The parties can also agree at any stage of the proceedings to settle the case and suspend the proceedings by mutually notifying the court of an agreed suspension. Parties can also suspend the proceedings for other reasons.

Last modified 19 Jul 2019

New Zealand

New Zealand

Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceedings. Parties will then exchange "pleadings" (such as statements of claim, defences, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party.  A statement of defence must be filed within 25 working days, but this period can be extended by the court.  The timeframe for litigation will depend on the type of claim and a number of other factors.  This is generally discussed at the first case management conference, which occurs after a statement of defence has been filed. 

For a standard civil proceeding, initial disclosure of relevant documents must be provided at the same time as the statement of claim or statement of defence is filed. 

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. 

Case management conferences are held at regular intervals throughout the process to address procedural issues as they arise, and manage the conduct and timeframes of the case up until its final hearing.

A company must be represented in court by a lawyer and cannot represent itself.  Individuals may appear on their own behalf without a lawyer, if they choose to do so.  

Last modified 20 Dec 2019

Norway

Norway

Before submitting a claim to the Conciliation Board or lodging a claim in a district court, a potential claimant must notify its claim to the opposing party in writing and bring to its attention material documents and other evidence. Parties must then explore the possibility of an amicable settlement.

It is important to note that, once proceedings are underway, Norwegian judges must consider at every stage of the proceedings whether they consider settlement could be reached through mediation (unless the nature of the case or other circumstances militate against mediation). Such mediation may be and is often administered by a judge, who is required to maintain confidentiality if mediation is unsuccessful. A judge involved in an unsuccessful mediation may only take part in the subsequent proceedings if the parties agree and if the judge does not consider it inappropriate.

If an amicable settlement cannot be reached at the pre-claim stage, as a general rule, a party wishing to have its civil claim determined by Norwegian courts must commence proceedings by submitting a statement of claim to a district court. A party may represent themself without the need for counsel, although this is a rarity in commercial litigation.

The court will effect service of the statement of claim, following which the defendant is normally given three weeks in which to respond by way of a defense. Depending on the complexity of the case, it is not unusual for a defendant to request an extension of time. If a further extension is requested, the court will ask the claimant if it has any objections.

The court is required to convene the first procedural hearing “immediately after” the filing of the defense. In practice, it usually scheduled within one month after the filing of the defense. The hearing is normally conducted by way of a telephone conference call with only counsel present.

At the first procedural hearing, the court will normally consider:

  • whether further written submissions are required;
  • whether the proceedings should be broken-up into stages;
  • access to or production of evidence that has been requested; and
  • whether mediation would be appropriate.

The court will also normally set the date for the main hearing, which is usually held within six months of the date when the statement of claim originating proceedings was submitted (unless special circumstances warrant a later date).

Judgments are typically issued within two to six weeks of the close of the main hearing, although a complex, multi-party case will usually lead to a longer period before a judgment is issued.

Note that summary judgment can be obtained where a claim or a defense is unsustainable. In such circumstances, the proceedings are conducted in writing.

Last modified 19 Jul 2019

Poland

Poland

A civil claim is commenced by filing a statement of claim with the competent court. The statement of claim must specify the amount in dispute and the relief sought, and include factual particulars of claim and supporting evidence (including documents, witness testimonies and expert opinions, as appropriate).

With the exception of proceedings before the Supreme Court, parties are not required to be legally represented. Parties are allowed to appear in person but if they choose to be legally represented, such representation must be by a duly authorized lawyer (an advocate (adwokat) or an attorney-at-law (radca prawny).

Upon filing a statement of claim, the court will consider whether it complies with the necessary formalities. Provided that the statement of claim complies with the formalities, the court will order that it be served on the defendant and it will set a date for the first hearing. Depending on the court, this stage may take from two weeks up to even two or three months.

A party may seek to file supplementary pleadings with the court. However, all allegations, applications and evidence should be raised in the statement of claim or in a response to a statement of claim (only as an exception may a party file a subsequent preparatory pleading that is accepted by the court). At this stage, a defendant may raise any defense to the claim.

The judge has discretion to decide whether the applications and evidence in the preparatory proceedings have been raised on time or if they have been raised too late. Parties to the dispute are required to present relevant evidence, so there is no need to present all the source documents connected to the case. Nevertheless, a party may request that any person (i.e. the other party or a third party) be ordered by the court to present specific documents in their possession that are relevant to the case. However, there is no regulation about the production of documents before trial.

The timing and duration of the proceedings depend on the court’s workload. In more complicated cases that require a number of witnesses or expert hearings, judgment is usually issued by the first instance court between two and five years after the claim is issued.

Last modified 19 Jul 2019

Qatar

Qatar

Usually, civil and commercial disputes are resolved by the civil courts, initially before the Court of First Instance. If the value of a dispute exceeds QAR100,000, it will be heard by a bench of three judges in the Higher Civil Court.

A claim is commenced when the claimant files its statement of claim (together with supporting documents) at the court bureau and pays the applicable court fee. The court registrar registers the case on the same day the claim is submitted to them. The court bailiff will then serve a summons on the defendant, which will include the first hearing date. Lawyers for each party are required to attend and produce their respective power of attorneys on the hearing date. The court will then fix a date for the examination of the claim and request that the defendant produces its written submissions in response to the claim at the next hearing. This will typically be three to four weeks later. This process of requesting written submissions from each party will continue for a few months until the court is satisfied that it has seen all relevant evidence. Although representation is not, in theory, mandatory, navigating the court system (which is fairly complex and in Arabic only) is difficult without legal representation and, in practice, parties are almost always represented.

A common and important feature of Qatari court litigation (particularly in respect of complex construction disputes) is the involvement of one or more court appointed experts (selected from an internal panel). Once appointed, an expert will meet the parties over a period of three to six months, review the case, and prepare a report of their findings. During this time, the court will continue to hold monthly hearings to monitor the status of the expert review process.

The parties, individually or collectively, have a right to object to the content of the expert’s report. If the court agrees with the objections raised, it may order that the expert revisits its report to address the parties’ objections or, alternatively, make an order to appoint a different expert. However, once the court is satisfied that the content of the report is final, it will tend to rely heavily upon it when giving its decision.

It can typically take as long as two years for a judgment to be given in cases before the Qatari Court of First Instance. With respect to cases heard by the Qatar International Court, a judgment will be issued within 90 days from the date on which the respondent received official notice of the claim, unless the nature of the claim requires one or several extensions, pursuant to Schedule 6 of QFC Law No. (7) of 2005.

Last modified 19 Jul 2019

Romania

Romania

Civil litigation begins when the plaintiff files the statement of claim at court. Legal representation is not mandatory, either in the courts of first instance or at appellate level.

Jurisdiction of the courts is generally determined by the place where the defendant resides, although there are other relevant criteria for certain types of disputes. The proceedings are usually divided into three main phases: the written phase, the evidence and discovery phase and the final pleadings phase.

During the written phase, the plaintiff’s statement of claim is allocated at random to a judge before it undergoes a prima facie examination. If the judge finds the statement to be lacking any essential formal elements (such as the complete names and addresses of the parties, the signature, etc.), the court will notify the plaintiff who will have a ten-day period to amend it. Should the plaintiff fail to do so, the statement of claim is annulled. The purpose of this procedure is to avoid prima facie incomplete claims being brought before the courts.

When the judge is satisfied that the statement of claim fulfills all necessary formal requirements, the defendant is served with the statement of claim. The defendant is then required to submit its statement of defense and counterclaim within a 25-day period. There is no possibility to extend this period, even in complex matters. However, in urgent cases, the deadline for the statement of defense can be brought forward by the court. The claimant may file an answer to the statement of defense within ten days of the latter being filed at court and served on the defendant.

After the exchange of written pleadings, the judge sets the date for the first hearing, the recommended period for which is 60 days. However, depending on the court’s workload and / or the urgency of the particular matter, the first hearing can be set outside of the recommended period.

At the evidence and discovery phase, the judge decides which of the pieces of evidence proposed by the parties are relevant and pertinent to the dispute and proceeds to its management. The judge may, ex officio, order the parties to the litigation, relevant third parties or other public authorities and institutions to produce any other evidence that the court considers necessary, even if such parties disagree with the court’s assessment.

Once the evidence and discovery phase is complete, the parties orally present the final pleadings at the hearing on the merits of the case. Written notes may be submitted and exchanged between the parties during trial and notes may also be filed at the court before a judgment is rendered.

The judge may give judgment at the end of the final session or he may reserve judgment to a later date. The detailed reasons for the judgment will be drafted and served on the parties at a later date (it is recommended that the detailed judgment be served within 30 days from the date of the decision but, in practice, this time period is not always observed).

Timeframes for each phase of the proceedings vary considerably depending on several factors, including the complexity of the case, the evidence to be produced, the workload of the court, the behavior of the parties etc. Typically, the written phase takes between 6 and 12 weeks. Upon completion of the written phase, a first hearing is listed to take place within two to six months. One can expect it to take a further 6 to 12 months for judgment to be given by the court of first instance depending on the complexity of the evidence which will be administered. In total, the estimated timeframe between the service of the claim and the first instance judgment for simple civil law claims is between 12 and 18 months.

Last modified 19 Jul 2019

Russia

Russia

As commercial disputes are predominantly heard by state commercial courts, this summary outlines the general procedure for commercial disputes in state commercial courts. 

There is no requirement for representation by an attorney (i.e. an advocate registered with one of the Russian regional bars) in state commercial courts. However, legislative amendments expected to enter into force by 1 October 2019 will require representatives to have a higher legal education or a degree in law, with some exceptions outlined in the legislation (e.g. for CEOs, patent and trademark attorneys in IP disputes and bankruptcy managers in the performance of their duties in bankruptcy cases).

For certain types of disputes specified by law, including claims for the recovery of funds, a claimant should first send the respondent a mandatory pre-trial demand letter. Generally, 30 days after sending the letter, the claimant may submit a statement of claim with supporting documents to the relevant state commercial court. If there is no requirement to send a pre-trial demand letter, the claimant may submit a statement of claim without the need to engage in pre-trial correspondence.

Usually, the claim is submitted to the court with jurisdiction over the respondent’s registered address. Once the claim is registered with the court, the judge has five business days to check whether the documents comply with the procedural rules for initiating proceedings specified by the Arbitrazh Procedure Code of the Russian Federation (i.e. the statement of claim contains all the information required by the Arbitrazh Procedure Code, including information about the subject-matter and parties to the case; all the documents required by the Arbitrazh Procedure Code are attached to the claim, etc.). If the documents are in order, the judge initiates the case and schedules a date for the preliminary (procedural) court hearing. The hearing is usually scheduled for a date one month after the commencement of the proceedings.

At the preliminary hearing, the court schedules a hearing based on merits. It is usual that several hearings take place before a final judgment is made.

In a straightforward case, the proceedings in the court of first instance may take approximately four to six months. However, proceedings may take longer, depending on the court’s workload and the case management of the proceedings by the parties.

There are also fast-track procedures whereby the court does not conduct a hearing and will make a ruling based on documentary evidence, these are (i) a court order; and (ii) summary proceedings. Such procedures are applicable to small claims below RUB500,000 (approximately USD7,500) or RUB800,000 (approximately USD12,000) or claims where the respondent had acknowledged its obligations but failed to perform them (e.g. the respondent acknowledged a debt in writing but failed to repay it). Simplified proceedings may take up to ten days (in the case of a court order) or up to two months (in the case of summary proceedings).

Last modified 19 Jul 2019

Saudi Arabia

Saudi Arabia

In the public judiciary branch, the claimant should initiate proceedings by filing a claim online through the Ministry of Justice's website. This must state the nature of the claim, the demands, and list the supporting documents that will be provided. All documents must be in Arabic. Usually, once an application is submitted, the court will take up to three weeks to review the application. The court will review the application to ensure all information and documents are provided. Once confirmed, the claimant must then visit the court within ten days to confirm the filing of the claim and have the case referred to a judicial circuit. The claimant will also receive the hearing date which will usually be between two weeks and three months of this visit to court. The court will then summons the defendant through the Summons Department which has started to use electronic methods, or alternatively the claimant can summon the defendant in person or through the post office. The time between each hearing session varies from case to case but, generally speaking, parties can expect there to be one or two months between each hearing for real estate cases, two to four weeks for family and criminal cases, and three to six weeks for commercial cases. When the court makes a decision, both parties must hear the judgment and they will then receive copies of the judgment in writing. Parties may appeal the judgment, however this must be done within 30 days.

In Saudi courts, the parties must either attend the hearings and represent themselves, or authorize individuals or attorneys to attend on their behalf and represent them (provided that an official notarized power of attorney is obtained).  Representation by an attorney is therefore not mandatory in Saudi courts, all individuals have the right to defend themselves without the need to appoint an attorney or representative.

Last modified 19 Jul 2019

Spain

Spain

In most legal proceedings in Spain it is mandatory that a party be defended by a lawyer and represented by a legal representative (procurador de los tribunales). The legal representative serves as a liaison between the lawyer, the client and the court and files pleadings and other documents, receives court orders and generally checks on the status of the proceedings.

Ordinary proceedings (juicio ordinario) are the most common civil proceedings in Spain as they are used for claims that exceed EUR6,000 and those where the economic interests cannot be calculated. Such proceedings are initiated by the plaintiff issuing a claim form (demanda) that states the facts and allegations and provides all of the documents (including expert reports) on which the claim is based.

The service of a claim form on the defendant is performed by the court but can also be carried out by the legal representative, at the request of the claimant. The defendant has a period of 20 working days to file the defense, following which the court will call the parties to a preliminary hearing (audiencia previa).The parties attend the preliminary hearing with their legal representative and lawyer.

At the preliminary hearing, the judge will ask the parties whether it is possible to settle the dispute. If it is not, the judge will:

  • resolve any procedural issues raised by the parties;
  • give the parties the opportunity to raise additional arguments that do not change the subject of the dispute or that clarify the pleading;
  • hear the parties’ challenges to the documentary evidence proposed by the opposing party;
  • request that the parties establish the facts under dispute;
  • decide on the admission of and any challenges to the evidence to be produced at the oral hearing; and
  • set a date for the oral hearing.

The purpose of the oral hearing is to: (i) enable the court to examine the evidence given by the parties, the witnesses and the experts; and (ii) as appropriate, examine other types of evidence including documents, images and sounds. Once the evidence has been given at the oral hearing, conclusions will be drawn from it by the lawyers and presented to the court in their closing arguments. The judgment (sentencia) is given in writing by the judge.

Proceedings usually follow the below timeline:

  • filing of the claim form;
  • the relevant court will issue a notice accepting the claim within approximately one to one and a half months;
  • service of the claim form;
  • 20 working days for the defendant to file a defense and any counterclaim;
  • preliminary hearing within approximately three to 6 months of the filing of the defense;
  • oral hearing within approximately 6 to 12 months of the preliminary oral hearing; and
  • judgment delivered within approximately 1 to 3 months of the oral hearing.

The timing for the entire proceedings is heavily influenced by the court’s workload. However, the time from service of the claim form on the defendant to obtaining a judgment should not exceed 12 months in straightforward civil lawsuits and other simple cases.

Last modified 19 Jul 2019

Sweden

Sweden

A typical civil lawsuit in Sweden starts with the claimant’s summons application. The summons application must contain the claimant’s requests for relief and the legal grounds to support them. It should also include a preliminary statement of evidence but, in practice, claimants are permitted to submit the statement of evidence once the matters in dispute have been clarified further to avoid unnecessary litigation costs.

A writ of summons is then issued by the court and served on the defendant. The defendant is normally granted two weeks for filing its statement of defense. Depending on the nature and complexity of the case, the court may request further clarification and / or elaboration from the parties in writing, usually within two weeks for each submission, and a preliminary court hearing is scheduled within a few months (although, in practice, the time may vary considerably depending on the court’s workload). The main purposes of the preliminary hearing are to fix a timetable for the remainder of the case and to focus the case on the issues in dispute to avoid unnecessary evidence and pleadings. The judge also has a statutory obligation to try to settle the dispute, which is a fairly common outcome of preliminary hearings. After the hearing, the court will request the parties to submit their final statements of evidence and the main hearing is scheduled.

In a straightforward civil lawsuit, the time from serving the writ until the preliminary hearing will be 3 to 6 months, and the main hearing will usually be held in approximately 12 to 18 months. The judgment is handed down within a few weeks of the main hearing. The proceedings can, of course, be far lengthier if the case is complicated.

Legal representation is not mandatory in civil cases. Where parties are represented, it is not necessary for counsel to be admitted to the Swedish bar or even to hold a law degree to be allowed to appear.

Last modified 19 Jul 2019

Thailand

Thailand

Before commencing proceedings, the claimant should send to the defendant a formal demand letter. While this is not always a mandatory requirement, it is accepted practice.

The claimant’s lawyer files a complaint, often known in other jurisdictions as a Statement of Claim, in the prescribed form to the court. The complaint must contain the name of the court and the names of the parties, together with details of the facts and allegations forming the basis of the claim. It does not need to contain all details and full particulars of the claim, provided there is sufficient information for the defendant to be able to respond to the claim and all facts on which the claimant wishes to rely on in later trial hearings are included. A Power of Attorney and / or a lawyer appointment deed is required to admit legal counsel on a case. Although it is not mandatory, it is common practice to instruct legal counsel in Thai litigation proceedings.

Subject to the acceptance of the complaint, the court office will serve the court summons and a copy of the complaint to the defendant. The estimated time for service is usually within one to two months of filing the claim. In cases where the defendant is located overseas, the summons service will be initiated through diplomatic channels, and will usually take 6 to 12 months.

The defendant may accept service of the proceedings by signing the court summons. In such circumstances they have 15 days from the date of service to submit a defense and / or counterclaim. In the event that the defendant does not sign the court summons, it is usually posted to the address of the defendant, who will have 30 days to submit a defense and / or counterclaim. The time permitted for filing a defense in consumer and labor cases will be different. Neither the court nor the defendant will serve the defense on the claimant, and therefore it is the duty of the claimant’s lawyers to check with the court as to whether a defense has been filed with the court, and to request a copy.

A case management hearing generally takes place between 60 and 90 days after the Statement of Claim has been filed in court. Written witness statements are usually not submitted unless agreed upon by the parties and the court. The time between the initial hearing, which determines the issues in dispute, and the date of the final hearing can vary from 4 months to 18 months, depending on the court’s schedule.

Closing statements are not mandatory and a judgment will still be handed down in cases where a party does not file a closing statement. The court issues a judgment, usually within one to two months of the end of the trial or the deadline for the submission of closing statements (if one has been provided). The first instance court process generally takes 12 to 18 months from filing the initial claim to judgment.

Parties can apply for extensions of time and request adjournments of hearings upon application to the court, which may be granted provided there is a reasonable explanation for the need for the extension or adjournment. Although not mandatory, the court encourages parties to participate in mediation.

Where the judgment concerns a monetary amount, the unsuccessful party must satisfy the judgment upon receipt of the enforcement order within the period prescribed in such order (generally within 30 days). Regardless of whether all parties attend the judgment hearing, the enforcement order will be issued on the same day.

If the prescribed enforcement period has lapsed, the successful party must file an application with the court for a writ of execution and for the court to appoint an execution officer (bailiff). Upon receipt, the bailiff will serve the writ of execution on the debtor, after which the bailiff will attach the debtor’s assets and liquidate them at auction, depending on the type of asset.

Last modified 19 Jul 2019

UK - England & Wales UK - England & Wales

UK - England & Wales

Proceedings are initiated by a claim form which must be filed at the relevant court and served on all parties to the case. This is either accompanied or followed by particulars of claim, which explain the claim in more detail. Both the claim form and the particulars of claim must be sent to the defendant within four months of issue. 

There is no mandatory requirement that a party has legal representation, and parties are at liberty to represent themselves as litigants in person.  However, the UK Supreme Court recently held that “the [court] rules do not in any relevant respect distinguish between represented and unrepresented parties” and, as such, litigants in person will not be given special treatment with regards to compliance with the relevant court rules or orders. Therefore, save in very low value claims, both parties will usually have legal representation.

The first step for a defendant is to acknowledge service of the claim. Under Part 7 of the CPR, the time limit to acknowledge service is 14 days from the service of the particulars of claim (at which point it can, if it wishes, indicate its wishes to challenge the jurisdiction of the court). 

If the defendant does not challenge the jurisdiction of the court or the relevant application is dismissed, the parties then proceed to exchange pleadings, which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. These can include:

  • the defence, which must be served within 14 days of the claim being issued or, if an acknowledgment of service is filed, within 28 days of the acknowledgment of service;
  • counterclaims, which usually accompany the defence, and
  • replies, which are optional and for which there is no definite time limit.   

If an allegation has been made which is unclear, parties can also request further information.

In most cases, disclosure takes place after an order has been made at the case management conference (see further below). Parties then go on to prepare evidence for a final hearing of the dispute. This will almost always include witness statements and may include expert evidence. 

Throughout the case, the court will exercise its wide case-management powers to ensure the efficient management of the proceedings. This is likely to include a case-management conference, a pre-trial review, directions orders (regarding the conduct and timetable for the case up until its final hearing) and consideration of disclosure and costs issues. 

Timeframes for each stage of proceedings (and the case as a whole) vary from case to case. Most cases take a minimum of 18 months to 2 years from start to finish, assuming no appeal. Some will take longer, although fast-track procedures are sometimes available. 

A defendant can also apply for summary judgment and/or strike out of a claim, which allows the court to decide some or all of a case without a full hearing. The defendant will have to prove that the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case (or a particular element of it) should be disposed of at full trial.   

In order to succeed, a claimant must establish that, on the balance of probabilities (i.e. that it is more likely than not) that its position is correct and that it can satisfy all of the elements of the causes of action on which its claim is based. 

Last modified 19 Jul 2019

UK - Scotland

UK - Scotland

The main procedural steps in ordinary procedure are similar in the Court of Session and the Sheriff Court. In the Court of Session, the pursuer (claimant) commences the claim by preparing a summons. In the Sheriff Court, the initiating document is the initial writ. An individual may act as a litigant in person in either court. However, companies and other business vehicles must obtain permission from the court to be represented by a lay representative (such as a director).

The summons or initial writ is lodged with the court in order to obtain a warrant to serve. A warrant to serve is the court’s authority to commence proceedings. Once the authority is obtained the initiating document is served by the pursuer on the defender (respondent). The defender has 21 days (42 days if outside the EU) to consider the claim. If the defender intends to defend the claim it must then lodge defences within either 7 or 14 days.

An adjustment period of approximately eight weeks usually follows where the pursuer and defender refine their respective pleadings. The case then calls in court for a procedural hearing. At that hearing, the judge reviews the pleadings and decides how the dispute is to be resolved.

Usually this is by either:

  • the fixing of a proof, a trial on the facts of the case; or
  • the fixing of a debate, a hearing on a point of law which may require to be determined before evidence can be led.

Timeframes for actions vary greatly depending on the complexity of the case. Undefended actions are generally determined within a month, whereas complex defended cases can take 18 months or more.

A fast-track, judge-managed procedure is available for commercial disputes in the Court of Session and in some Sheriff Courts.

In the vast majority of cases, judgments are in writing and are generally delivered within around three months of any substantive hearing.

Last modified 19 Jul 2019

United Arab Emirates

United Arab Emirates

The DIFC and ADGM court rules have generally similar litigation procedures. Subject to the issues in dispute, proceedings will generally go through the following stages:

  • Claim: A party files its claim with the court and serves the same on the parties to the proceedings.
  • Pleadings: Parties exchange their pleadings which include particularized statements of claim, defense, counterclaims and defense to counterclaims. These pleadings will identify and particularize the issues in dispute.
  • Disclosure: This will begin during the pleadings phase and proceed concurrently with the remaining phases.
  • Factual witnesses: Parties will exchange any statements of witnesses of fact they wish to rely on and potentially also exchange reply statements.
  • Expert witnesses: Parties will exchange any statements of experts they wish to rely on and potentially also exchange reply statements.
  • Trial: Parties will finally attend an oral hearing before the court to argue their respective cases. It is also at trial that the witnesses and experts of the parties will be examined and cross-examined on their evidence.

It is difficult to estimate the timeframe of proceedings in the DIFC courts, and the ADGM courts (as at the time of writing) is yet to hear cases that have been through the entirety of the litigation process (including appeals). That said, the relevant factors to be considered include:

  • the complexity and number of issues in dispute;
  • the availability of the parties, their respective counsel, witnesses and experts; and
  • the availability of the judge(s) allocated to the case.

Legal representation in DIFC or ADGM court proceedings is not mandatory. However, in circumstances where a claim falls into a small claims category, legal representation may not be permitted by the relevant court rules.

Each of the DIFC and ADGM court rules have specific rules for when a claim is considered to fall within the jurisdiction of the small claims court or tribunal. These rules:

  • are aimed at efficiently dispensing with cases and examples of this include:
    • truncated timetables for service of proceedings and pleadings;
    • no provision for a document production / disclosure process. However, orders for document production could be applied for;
    • expert evidence is not permitted without an order of the court; and
    • the ability of the parties to agree that the dispute be dealt with on the papers; and
  • are not solely related to value; small claims could include, for example, employment cases where the parties have agreed to refer the matter to a small claims tribunal).

It is also worth noting that each of DIFC and ADGM rules have unique provisions and processes in respect of small claims. For example, the DIFC rules provide for:

  • a conciliatory process identified as a consultation phase where the parties meet before the judge hearing their case with the aim of settling the dispute prior to a hearing on the merits; and
  • hearings and consultations to be in private (unless the parties agree otherwise).

Last modified 19 Jul 2019

United States

United States

The litigation process is broadly similar across state and federal courts. Individual litigants may be represented by counsel or can choose to represent themselves. Corporations are generally required to retain an attorney to represent them. In federal court and in most states, proceedings are initiated by a complaint, which must be filed in the relevant court. Some states permit a plaintiff to commence a suit by requesting issuance of a summons without filing a complaint, although even in those jurisdictions a complaint must be filed after the summons is issued. The summons and a copy of the complaint must then be served on the defendant. The period for service varies by jurisdiction but is typically between 30 and 90 days after the complaint was filed. Unless service is waived, proof of service must be filed with the court (usually the person who served the document would sign an affidavit). Unless there is a good reason, the court will dismiss the action if the summons is not served on the defendant within the applicable timeframe.

There is generally no requirement in United States courts of pre-suit notice or that parties must attempt to resolve their dispute before an action is filed. Defendants have the right to file a motion to dismiss the complaint on a variety of procedural grounds, including lack of personal jurisdiction over the defendant, lack of subject matter jurisdiction by the court, improper service or venue, or failure to state a valid legal claim. Timeframes for filing such motions vary among jurisdictions but are typically between 21 and 60 days.

If no motion to dismiss is filed or if the court denies the motion, the defendant must file an answer to the complaint (typically within 14 to 30 days depending on the jurisdiction). In the answer, the defendants may assert counterclaims against the plaintiff, assert cross-claims against another defendant, or join additional parties. Once an answer is filed, parties begin the discovery process.

Timeframes for discovery vary greatly depending on the complexity of the case and the case management preferences of the assigned judge, and may range from a few months for simple matters to a year or more for complex ones.

Once discovery is completed, any party may file a motion for summary judgment, asking the court to enter judgment in that party’s favor based on the undisputed facts of record or a legal question that is dispositive of the case. If no motion for summary judgment is filed or if the court denies the motion, the case is scheduled for trial. Notably, many courts will strongly encourage or order the parties to participate in some form of alternative dispute resolution (e.g. mediation) at some point prior to trial.

Cases typically proceed from filing to trial in two to three years, though longer timeframes may be granted for complex matters.

Last modified 19 Jul 2019

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions.

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute. 

The specific legislation is: 

  • Limitation Act 1985 (ACT)
  • Limitation Act 1981 (NT)
  • Limitation Act 1969 (NSW)
  • Limitation of Actions Act 1974 (QLD)
  • Limitation of Actions Act 1936 (SA)
  • Limitation Act 1974 (TAS)
  • Limitation of Actions Act 1958 (VIC)
  • Limitation Act 2005 (WA) 

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred. 

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort). 

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim. 

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.  

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing. 

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.  

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months. 

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.  

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged. 

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders. 

Default judgment can be applied for in proceedings in any court where a defendant does not:

  • file a defense within the specified timeframe after a statement of claim has been served; or
  • fails to make an appearance at a hearing.

Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of judgment by default. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters). 

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal. 

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment. 

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders. 

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation. 

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed. 

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that: 

  • there is a serious question of law to be tried;
  • the balance of convenience favors the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy. 

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails. 

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing. 

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party’s business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party’s power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts’ authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant’s property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as 'a drastic remedy which should not be granted lightly.' Broadly and generally, an applicant must show that: 

  • the applicant has a good arguable case (in the substantive cause of action);
  • the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
  • the balance of convenience favors the making of the order.

Australian courts have wide discretion to award costs orders against either party to cover the opposing party’s costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights. 

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case. 

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favorable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes. 

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding. 

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current (2019) rate for commencing proceedings in the Federal Court of Australia is AUD4,045 for corporations and the hearing fee for a five-day trial is AUD19,730 for corporations.

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.  

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings. 

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia. 

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement. 

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia. 

Cameron Maclean

Cameron Maclean

Partner
DLA Piper Australia
[email protected]
T +61 8 6467 6013
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