Glossary
A without-prejudice process in which a neutral third party helps the parties negotiate a settlement, without power to impose an outcome.
Anatomy of a Commercial Dispute
from Commercial Disputes
Before proceedings are issued, parties are expected to comply with the relevant Pre-Action Protocol, which encourages early exchange of information and attempts at settlement. Once proceedings begin, the key stages include filing of statements of case (particulars of claim and defence), disclosure (each party revealing relevant documents to the other), exchange of witness statements and expert reports, and finally trial. The Civil Procedure Rules (CPR) govern the process and emphasise proportionality, case management, and active judicial involvement. Most commercial disputes settle before trial — often at a mediation — but the litigation process shapes the negotiating dynamics throughout.
Alternative Dispute Resolution
from Commercial Disputes
Mediation is the most commonly used form of ADR in England and Wales. A neutral mediator facilitates negotiation between the parties, who retain control over the outcome — unlike in arbitration or litigation, where a third party imposes a decision. Courts actively encourage mediation, and an unreasonable refusal to mediate can result in adverse costs orders even if the refusing party wins the case. Other ADR mechanisms include expert determination (where an independent expert resolves a specific technical or valuation dispute) and adjudication (mandatory in construction disputes under the Housing Grants Act 1996). Choosing the right dispute resolution mechanism is a strategic decision that lawyers advise on at the contract drafting stage.
Disclosure
The process by which each party to litigation reveals to the other the documents relevant to the issues in dispute.
Injunction
A court order compelling a party to do something (mandatory) or refrain from doing something (prohibitory), breach of which is contempt of court.
Freezing Order
A court order preventing a party from dealing with or dissipating its assets, designed to preserve funds for a potential future judgment.
Arbitral Award
The binding decision issued by an arbitral tribunal, enforceable internationally under the New York Convention.
Seat of Arbitration
The legal jurisdiction governing the arbitration proceedings (as distinct from the physical venue), determining the courts with supervisory jurisdiction.
Third-Party Funding
An arrangement where an external funder finances a party's legal costs in return for a share of what the claim recovers — a structure English law has treated as contentious since PACCAR.
Pre-Action Protocol
Rules requiring parties to exchange information and attempt settlement before issuing court proceedings, with cost penalties for non-compliance.
Without Prejudice
A legal privilege protecting statements made in genuine settlement negotiations from being disclosed to the court.