Major Differences When Litigating Under Common Law Or Civil Law

20th April 2016

Many clients, and even lawyers, assume that litigation, particularly in Western or European jurisdictions, will be broadly similar.  However this is far from true and there are many significant differences in approach between Common Law jurisdictions and those under Civil Law.


This is perhaps the most significant difference.  Common Law systems require substantial disclosure of “documents”.  This term includes not only physical documents but also electronic documents, for example, emails and texts.

In England parties are required to search for all relevant documents (whether they assist or harm their case) and to produce these for their opponent to inspect.

This can be a substantial and expensive task involving searching hard disks, laptops, PC’s, mobile phones and any similar devices.

Often specialist external providers are used to assist with the process of searching for and then collating the documents.  Even in relatively small cases this can involve producing thousands of documents and in larger cases this can often run to hundreds of thousands or more.

In Civil Code jurisdictions this requirement does not exist and generally there is no obligation upon a party to produce documents.

Because of the extensive obligations of disclosure in Common Law jurisdictions, other issues arise which are rarely encountered in Civil Law jurisdictions.

Privilege (the right to withhold documents) is an area which can lead to difficult and often complex issues.  Generally, for example, communications with a lawyer are privileged from disclosure.  However this can be less clear where, for example, the lawyer is an in-house employee.

Whilst extensive disclosure may be helpful, in many cases, it does come at a substantial cost.

Not only do all the documents have to be collated but each party’s lawyers will need to read not only their own client’s documents but also those of the other side.

Sophisticated computer systems have been developed “intelligently” to search for documents in larger cases but these are a far from cheap option.

Witness Evidence

The next major difference is in the extent of oral testimony from witnesses.  In Common Law jurisdictions this plays a very large and important role at the trial.

The parties will usually exchange Witness Statements from the witnesses they intend to call before the trial and, at the trial, the opponent is free to cross-examine the witness on any matters, whether or not within the statement.

This is a highly skilled task and in English based jurisdictions for the most part this work is carried out by specialist barristers engaged by the solicitors who have prepared the case.

Oral evidence forms a major and important part of the trial so that even relatively small cases may involve trials of many days or weeks.  Larger cases may run into months.

In Civil Law jurisdictions, oral evidence generally pays a much less important role and oral hearings tend to be very much shorter.


Perhaps the biggest and, from the client’s point of view, the most important difference, is in the question of costs.

The Common Law procedures are sophisticated and thorough and involve a detailed forensic examination of physical evidence and oral testimony.  Whilst it may be considered that this possibly produces a more just outcome, the cost is very substantial so that, in many cases, clients are simply unwilling or unable to pursue claims.

Costs in Civil Law jurisdictions tend to be very much less and much more predictable.

In English based systems it is usual for the successful party to recover the majority of its costs from the loser.

In Civil Code jurisdictions, costs recovery either does not feature or is much more restricted.


Common Law jurisdictions rely heavily on the concept of precedent.  Where a point of law has been determined previously, particularly by a Higher Court, the Court hearing the matter is usually bound to follow the earlier decision.

In Civil Law, the decisions are based more upon the relevant Code and Courts are fair less bound by any earlier decisions which can sometimes lead to apparently conflicting decisions on similar points.


Under English Law a party may represent itself in Court proceedings.  In Civil Law jurisdictions it is usually the case that the party must be represented by a lawyer.


The purpose of this note is not to try to argue whether one system is better than another.  Both have strengths and weaknesses.  What is important is for clients and their advisers to appreciate the significant difference between the two systems both in terms of procedure and in costs.  Understanding this is essential to enable clients to make well informed decisions when disputes arise.  The assistance of experience and capable local Counsel with detailed knowledge and understanding of the litigation process in the relevant jurisdiction is essential.