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Guide to Common Commercial Litigation Questions with Answers

This guide highlights some common questions the Commercial Litigation team get asked along with the answers.

What is a retention of title clause?

It is a clause that gives you the right to retain ownership of your goods if they have not been paid for and could give you the right to go in and collect your goods from the person/company that you sold them to or collect them from another party.

I have a commercial lease and my tenant has not paid the rent what can I do?

You could look to remove the tenant from the building (subject to provisions in your lease) under a process called forfeiture. This brings the lease to an end but means that you can still pursue your tenant for rent arrears and other breaches of the lease.

I have resigned as a director of a company but also signed a personal guarantee will that no come an end as well?

No the guarantee will continue. Have a look at the guarantee and see if you can give notice to limit any liability. If not you could be liable for debts that the company accrue in the future

What is a statutory demand?

A Statutory Demand is essentially a written warning from a creditor that should you not either make payment of a debt or come to an alternative arrangement with the creditor which is acceptable to them, then they will issue court proceedings to make you bankrupt.

What is the difference between a Deed and a Contract?

A deed confirms an agreement between parties in any situation where there is an interest, right or property created or transferred. Agreements which must be made by deed include the transfer of land, leases and powers of attorney.

These examples must be made by deed because of the additional formalities required for the creation of a deed. For example, a deed must be witnessed whereas a contract does not.

A contract can be either written or based solely on verbal agreement, however a deed must be in writing to be valid. Deeds also have a longer term in which they can be enforced providing a limitation period of 12 years rather than 6 years as for contracts.

The final identifying difference between a contract and deed is that a contract requires something to be given in exchange for the agreement, referred to as ‘consideration’. Consideration is not a requirement for a deed to be enforceable, making it suitable in circumstances such as powers of attorney.


I have received a court form – What should I do?

f you have received a Claim Form from a County Court, whether you intend to defend or admit the claims, the key is to act quickly to ensure no court deadlines are missed as this could trigger the court to make an order against you.

Firstly, check what you have received is actually a court form. A letter headed with the words ‘Letter Before Claim’ or ‘Letter Before Action’ is not an official court form. This is often used as a way to encourage parties to engage before official proceedings are issued, however you should still respond as not doing so may result in official court proceedings being commenced.

If court proceedings have been commenced against you, the key timeline to remember is that you have 14 days from the date of service of the Claim Form to file an Acknowledgement of Service with the Court. There are procedural rules on the dates of service providing for what date after a document has been posted/delivered that it will be deemed to be served. The Court Order will often clearly state on which date the Claim Form will be deemed to have been served and it is 14 days after this date by which you should file your Acknowledgement of Service.

The Acknowledgement of Service is a prescribed form and by filing this you will then have a further 14 days to file a Defence to the proceedings.

Can I bring an additional party into my contractual claim?

It is possible for additional parties to be brought into a contractual claim. Either the claimant(s) or defendant(s) can make an additional claim against anyone who is already party to the proceeding or any third party. However, the court will always have discretion on whether or not an additional claim should be allowed in any case.

Once a third party has successfully been added into proceedings it is even possible for that third party to make a claim against another party, whether or not they are already part of the proceedings.

How long does a court claim take?

It is difficult to estimate how long it can take to bring or defend a claim that is proceeding through the courts due to the timescales and current workload and backlog of many of the courts.

There are however many procedures which must be followed in any claim. Part of the proceedings will be setting a timetable for these (known as directions). Once a directions order is received outlining the timetable for the matter, it is easier to get an understanding of how long it may take to reach a conclusion of the case.

However, directions are not always set in stone and variations may be made or extensions may be needed to allow a party to comply with the court procedures.

What is the difference between express and implied terms?

An express term is often one which is recorded in a written contract and is agreed upon between parties by signing the contract. There can however be express terms in an oral contract by the parties discussing and agreeing upon a term at the time of verbally entering into a contract.

An implied term, however, is one which is not expressly included in the contract, whether this be a written or oral contract. These are terms which are implied into the contract to reflect the intention of the parties at the time it was created. Terms can be implied by fact, law or custom.

For example, within the sale and supply of goods there are terms implied by law which require goods to be of satisfactory quality and fit for purpose.

How long do I have to bring a contractual claim?

The period in which you can bring a claim under a contract is 6 years following the date the breach occurred.
If the contract is executed as a deed (this should be clearly stated on the signature page) then the period in which a claim can be brought is 12 years.

What is an expert witness?

An expert witness is a person with specialised knowledge in a certain area or field which allows them to present an opinion on the facts and merits of a case. As part of a claim, an expert witness may be called upon to provide their opinion on specific details which are in dispute.

The court often tends to favour using a jointly instructed expert who acts on behalf of both parties in accordance with instructions agreed between the parties. The report they provide must independently present their opinion.

This is often where points of dispute can arise between parties in agreeing the joint instructions as neither party will want there to be anything which could impact the expert’s impartiality.

Should I use a solicitor in my commercial dispute?

It is not a requirement for a parties to a dispute to be legally represented; it is possible to act as a Litigant in Person whereby you represent yourself. The aim of the court will be to make sure you have had a fair hearing, no matter the outcome.

The benefit of acting as a litigant in person is you will be able to save costs associated in instructing a solicitor. However, it should be noted that there are many processes and procedures involved in bringing or defending a claim that proceeds to court which must be followed as well as rules which must be abided by to avoid the court imposing sanctions.

Can I bring a claim against someone based on a verbal agreement?

Although it can be difficult to prove the terms of a contract agreed verbally, this type of contract is legally binding.

Despite it being made verbally and not being written down, there still needs to be the three essential elements of a contract present for a verbal agreement to be enforceable. These are an offer, acceptance of that offer and consideration.

Can I amend my contractual claim after it has been issued?

If the claim has not yet been issued on the other party then it is possible to amend it.

If the claim has already been issued on the other party then it can only be amended with the written consent of all other parties or with permission of the court.

Where an amendment has been made to a claim form with the agreement of all other parties, it is still within the power of the court to disallow the amendment.

If an amendment to a claim is sought after it has been issued and the limitation period for bringing the claim has now passed there are further rules which must be considered in requesting an amendment.

Where the amendment is to correct a mistake in the name of a party, this will only be allowed if the mistake is genuine and if the amendment will add or substitute a new claim, then the amendment may only be allowed if the facts of the new claim are substantially the same as the original claim.

If I bring a contractual claim, what will be awarded? – What are the remedies available for a contractual claim?

The remedies which may be awarded if you are successful in bringing a breach of contract claim include:


You may be able to terminate the contract and claim damages for any loss you have suffered as a result.


This is an award of money to reflect any loss you have suffered. You can only claim damages to put you back in the position you would have been in had the contract been properly performed.

Specific Performance

This is a lesser used remedy which allows the court to specifically order a party to carry out their contractual obligations.

How do I defend a contractual claim?

After a court claim has been issued against you, you have 14 days from the date of service to file an Acknowledgement of Service which is a prescribed court form acknowledging the claim.

After you have filed an Acknowledgement of Service you have 14 days to file a defence. This is where you can either admit or deny each allegation being made against you.
If an official claim has been issued against you, you must abide by the timelines to avoid the court making an order against you.

What should a defence include?

Each allegation included within the particulars of claim should be address and dealt with in the defence.

The defendant should state which allegations are admitted, which are neither admitting nor denied and which require proof from the claimant, and which are denied with reasons for doing so and stating their version of events if they intend to put forward a different version to that of the claimant.

A failure to address an allegation made in the particulars of claim will result in the defendant being deemed to have admitted that allegation. This is why it is vital that each of the allegations are dealt with in the defence to avoid admitting anything you intended to deny.

How much can I claim in a breach of contract case?

The law on damages only allows a successful party to be put in the position they would have been in had the contract been properly performed.

This means it is only possible to claim for your actual loss suffered and will not allow for an award of ‘compensation’ bettering your position.

Can I claim adverse possession over land owned by the crown?

Where adverse possession is being claimed against the Crown, the period of adverse possession required is 30 years.

However, if the Land was owned by a company which has now been dissolved and the person claiming adverse possession had already established 12 years of adverse possession before the date of dissolution, the land would not have passed to the Crown bona vacantia. The requirement is 60 years however for Crown foreshore.

What is bona vacantia?

‘Bona Vacantia’ translates to ‘vacant goods’. This is the name given to ownerless property, which by law passes to the Crown.

Can I claim adverse possession over registered land?

You can claim adverse possession over registered land; there are two regimes in which your application may fall under.

Under the old regime, your occupation must have commenced prior to 13th October 1991 and is dealt with under Schedule 12 Paragraph 18 of the Land Registration Act 2002. This regime requires you to have 12 consecutive years of exclusive occupation.

The new regime was created by the Land Registration Act 2002 only applies to registered land and is dealt with under Schedule 6. If occupation of the land commenced after 13th October 1991, this would be the regime of use.

The new schedule only requires 10 years of exclusive occupation, however this regime makes it more likely that a registered proprietor will be able to prevent an application for adverse possession of their land being completed.

his is as a result of the application having to be made under one of three stringent conditions. If your application does not meet these conditions, and the application is opposed to by the registered proprietor, it will be rejected.