Jane Lambert
27 May 2010

The noun “litigation” usually refers to proceedings in the civil courts. That is to say, claims by one or more parties against one or more other parties, for one or more of the following remedies:

  • injunctions: orders of the court to do or refrain from doing something on pain of imprisonment, fine or other punishment);
  • delivery up: surrender of materials used in wrongdoing such as infringing copies of a copyright work;
  • damages: an award of money to be paid by one party to another usually as compensation for injury, loss or damage that party has sustained from the wrongdoing of the other;
  • account of profits: reimbursement of gains made from wrongdoing; and
  • costs: contributions towards the legal fees and others costs of the successful party to civil proceedings.

Civil proceedings are to be contrasted with

  • criminal proceedings where a prosecutor accuses a party of an offence and seeks his or her punishment if convicted;
  • tribunal proceedings where an administrative body of limited jurisdiction known as a tribunal determines a party’s rights against the state or against another individual; and
  • arbitration where the parties agree to refer issues that could have been determined by the civil courts to one or more neutrals of their own choosing.

Courts in England and Wales and countries with legal systems derived from or influenced by England such as the USA, the Republic of Ireland and most of the Commonwealth have adopted an adversarial system of litigation where the parties decide the issues to be determined, the witnesses to be called and the documentary and physical evidence to be adduced. In continental Europe, Latin America, French and Portuguese speaking Africa, China, Indonesia and Japan, the judges decide the issues they wish to decide and the evidence they wish to consider. That is called the inquisitorial system. Intellectual property proceedings in countries with an adversarial system tend to be very much more expensive than litigation in those with an inquisitorial system.   According to “The Enforcement of Patent Rights”, a report published by HM government’s Intellectual Property Advisory Committee in 2003, a patent infringement action can cost up to £1 million in England and Wales, US$2 to US$4 million in the USA but only €10,000 to €40,000 in the Netherlands, €30,000 to €50,000 in France and €25,000 to €50,000 in Germany.