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Following our September 2025 presentation with Charles Martin and Shain Wasser, this article highlights the core procedural and cultural differences between England and Wales and California litigation — and what they mean for UK insurers managing US exposure.
Liability: a wider net in the US
Example: A trip-and-fall incident during a run, resulting in traumatic brain injury and paraplegia — illustrated how potential defendants multiply quickly in US litigation.
In England and Wales, claims of this nature are typically confined to the Highway Authority or its maintenance contractor, proceeding under section 41 of the Highways Act 1980 (with a statutory defence under section 58) or in negligence.
In California, by contrast, a single incident may spawn claims against the property owner, maintenance company, management company and even the city itself. US liability theory hinges on duty, foreseeability, notice and comparative fault — broad concepts that give plaintiffs’ counsel wide latitude to include multiple defendants and expand discovery.
For UK carriers, this means that even modest incidents can escalate rapidly in cost and complexity. Early coordination among insureds, brokers and US counsel is essential to manage indemnity and defense obligations efficiently.
Pleadings and jurisdiction: the early tactical stage
Limitation periods also differ sharply. In England and Wales, the period is three years from the date of accident or knowledge. In California, it’s generally two years, but a shorter six-month notice applies when suing a public entity under the Government Code — a requirement which can be easily missed by the unwary.
California defendants may also seek removal to federal court, where strict scheduling orders and a more predictable docket can accelerate resolution. Federal jurisdiction requires either a federal question or diversity of citizenship (i.e. cases where the parties are domiciled in different states within the US) with at least $75,000 in controversy.
Another procedural hallmark in California is the demurrer — a mechanism to test the legal sufficiency of a complaint before engaging in full discovery. While not a perfect analog, it serves a role somewhat similar to the summary judgment or strike-out applications in England and Wales, and can be a powerful early defense tool.
Disclosure vs. discovery: the central divide
Perhaps the most significant transatlantic contrast lies in evidence gathering.
In England and Wales, the Serious Injury Guide encourages early, proportionate disclosure of medical and financial records. Following issue, a Case Management Conference (CMC) sets directions, including formal disclosure via Form N265. Privilege is narrowly defined —limited to legal advice and litigation privilege.
In California, discovery begins almost immediately — no initial disclosure is required under California rules. Plaintiffs’ attorneys frequently limit the medical records produced to the specific injury at issue, while defense counsel must often litigate for broader access. Discovery tools include form and special interrogatories, document requests and depositions, with responses due within 30 days.
Depositions, largely absent from proceedings in England and Wales, are pivotal in US cases. Witnesses — including corporate designees or “Persons Most Qualified” — testify under oath, with questioning limited only by the potential for relevance. The plaintiff’s deposition can shape the entire defense strategy; skilled preparation is therefore essential.
Experts and evidence
Both jurisdictions rely heavily on expert evidence in catastrophic injury claims, but the process differs fundamentally.
In England and Wales, courts often encourage joint experts for non-controversial issues and require experts to meet and prepare joint statements outlining agreement and disagreement. Expert independence is paramount, and reports are exchanged according to CMC directions.
In California, the plaintiff and defendant do not share experts. Each side retains multiple specialists, who may never meet or correspond. Expert reports are exchanged shortly before depositions (under state rules) or earlier in federal court. This results in far greater duplication — and cost — but also provides broader tactical flexibility.
Damages and cost exposure
The structure of recoverable damages reveals both parallels and stark divergences.
In both systems, past and future economic losses — lost earnings, care and medical costs —are recoverable. But initial treatment costs diverge sharply: for claims brought in England and Wales, early care is often provided through the NHS and governed by the Rehabilitation Code; in the US, there is no equivalent mechanism. Plaintiffs instead pursue the most expensive care available to increase settlement leverage, often through medical liens.
Non-economic damages — “pain, suffering and loss of amenity” (England and Wales) or “general damages” (US) — highlight the greatest cultural difference. In England and Wales, these are judicially moderated using Judicial College Guidelines (for example, £250,000 for catastrophic spinal injury). In California, the same case might go before a jury capable of awarding millions for emotional or punitive effect.
Our comparative example illustrated this vividly:
- England and Wales: total damages of approximately £3.5 – 5 million (including all future losses).
- California: property owner liable for $9 million, management company $350,000, with unknown amounts that may be assessed onto the city.
For carriers, this underscores why venue selection and jury exposure are decisive considerations in US claims valuation.
Settlement culture and cost-shifting
Both jurisdictions encourage early resolution, but by different means.
In England and Wales, joint settlement meetings (JSMs) are the dominant forum — structured, advocate-led and highly effective. Courts may compel alternative dispute resolution (ADR), and Part 36 offers carry strong cost-shifting incentives.
In California, mediation is nearly universal, often conducted by retired judges. Likewise, the California Code of Civil Procedure section 998 offer serves a similar purpose to Part 36, allowing recovery of certain post-offer costs if the opponent fails to do better at trial.
For insurers, these mechanisms shape strategy and reserving: knowing when and how to make cost-protective offers can significantly reduce ultimate indemnity exposure.
Trials and jury dynamics
High-value claims in England and Wales are tried before a judge, usually with counsel instructed for advocacy. US cases, however, go to jury trial, with voir dire — the process of questioning and excluding jurors — playing a critical role. Jury psychology, community sentiment and perceptions of insurer conduct can heavily influence verdicts.
For multi-million-dollar cases, US defense teams often conduct mock trials or focus groups to anticipate jury reactions — a cost of roughly $30,000 that can save exponentially more at trial.
Comment
While England and Wales and the US share a common-law foundation, California litigation operates under entirely different dynamics: expansive discovery, jury unpredictability and the absence of cost recovery.
For UK and London Market carriers, understanding these distinctions is vital for accurate reserving, early strategy and realistic expectations around defense spend. With coordinated transatlantic communication, disciplined discovery management and counsel experienced in both systems, even complex US catastrophic claims can be effectively contained and resolved.
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