A Guide to Commercial Litigation

A step-by-step approach to the different stages in court proceedings.

This guide is designed to help you understand the litigation process in England and Wales, from the steps you should take before proceedings begin through to trial, judgment and enforcement. It focuses on commercial disputes in the High Court.

It takes you through each stage of the litigation process, broadly in the order in which it happens.

It gives a general overview and does not cover all the rules and procedures that may apply. Special rules apply to certain types of case and every dispute is different.

The information is based on the rules in force as of July 2026.

This guide should not be relied upon as a substitute for legal advice. If you or your business become involved in a dispute, we recommend that you seek legal advice at the earliest opportunity.

Achieving a successful outcome in litigation requires more than an understanding of the process. It depends on hard work, a strong team, careful preparation and a willingness to adapt your approach as the case develops.

The Stages of litigation

Our guide covers each stage of the litigation process in England & Wales.

Click on the stage below for more information.

Before Litigation Starts

The English courts expect litigation to be a last resort. Before issuing proceedings, the parties should take reasonable steps to resolve the dispute and exchange relevant information. A failure to do so can have significant costs consequences.

Preparing your case

Steps to take in order to prepare to bring or defend a claim.

Trial and Enforcement

The trial process and and enforcement.

Before litigation starts

As soon as litigation is reasonably in contemplation, the parties are under an obligation to preserve all documents that may be relevant to the dispute.

This obligation is broad and extends to documents in all formats, including:

paper documents and files;
emails and attachments;
text messages and messages on chat and messaging platforms such as WhatsApp, Microsoft Teams and Slack;
telephone recordings and voicemails;
electronic documents, including drafts and earlier versions;
documents and data held in cloud-based platforms and shared drives;
social media posts and direct messages; and
interactions with artificial intelligence tools, including prompts and queries submitted to AI systems, the responses generated and any related chat or conversation histories.

This is not an exhaustive list. The duty to preserve applies to any material, in any medium, that may be relevant. Any automatic deletion or retention policies should be suspended immediately and you should speak to your lawyers promptly about the steps needed to identify and preserve relevant material.

For certain types of dispute, a specific pre-action protocol will apply - for example, in professional negligence claims. Where a protocol applies, the parties must comply with its detailed requirements unless there are exceptional circumstances, such as genuine urgency. This will involve, among other things, the early exchange of information and documents.

Even where no specific protocol applies, the parties are still expected to follow the spirit of the pre-action protocols. In practice, this means:

The claimant should send a detailed letter of claim setting out the basis of the claim and giving the defendant a reasonable time to respond.
The defendant should be given a fair opportunity to ask for further information and to respond in detail.
Both parties should conduct genuine and reasonable negotiations with a view to settling the dispute.
Both parties should consider whether ADR would be appropriate.

See ADR section below.

Costs consequences

If a party fails to act reasonably in attempting to settle the dispute before proceedings are started, including by refusing to engage in ADR, the court can take this into account when deciding costs.

Before starting court proceedings, it is worth considering whether your dispute could be resolved through alternative dispute resolution (ADR). ADR can often be quicker, less expensive and more flexible than litigation, and may help preserve commercial relationships.

The courts actively encourage parties to consider ADR, and a failure to do so can have costs consequences. Following changes to the Civil Procedure Rules effective from 1 October 2024, dealing with cases justly and at proportionate cost now expressly includes promoting or using ADR. As part of its case management powers, the Court may now order the parties to engage in ADR, even where the parties are reluctant to do so. When exercising its discretion on costs, the Court will consider whether a party failed to comply with an order for ADR, or unreasonably failed to engage in ADR.

There are several established forms of ADR, including:

Arbitration - a private and normally confidential process in which one or more independent arbitrators decide the dispute, rather than a court-appointed judge. An arbitrator's decision is usually final and legally binding.
Mediation - a facilitated negotiation in which an independent mediator, appointed by the parties, helps them work towards a mutually acceptable settlement. The mediator does not impose a decision. Since 1 October 2024, the court has had the power to order parties to mediate.
Early neutral evaluation - an independent third party assesses the merits of each party's position and provides non-binding guidance, which can help focus settlement discussions.
Expert determination - an independent expert is appointed to resolve a specific issue or the dispute as a whole, producing a decision that is normally legally binding.

Your contract may require the parties to follow a particular ADR procedure before commencing litigation. If so, the parties should generally follow that procedure unless there are exceptional circumstances for not doing so.

In some sectors, it may also be appropriate to refer a complaint to an ombudsman scheme (for example, in financial services or energy disputes).

Even if ADR does not resolve the dispute at the outset, settlement remains possible at any stage of court proceedings, including after trial has begun. In practice, the majority of cases settle before trial.

Litigation can be expensive and you should seek advice at an early stage on how much court proceedings are likely to cost. Be aware that litigation is often unpredictable, so it can be difficult to estimate costs accurately. Generally, English lawyers charge for their work on an hourly basis.

The loser pays

The general rule in English litigation is that the losing party pays the winning party's reasonable legal costs, although it is rare that all of those costs are recovered in full. A losing party should therefore expect to pay not only their own legal costs but also a significant proportion of their opponent's.

Part 36 offers

Part 36 of the Civil Procedure Rules provides a formal mechanism for making settlement offers with significant costs consequences. A party can make a Part 36 offer at any stage of proceedings, offering to settle the claim (or part of it) on specified terms.

If a claimant makes a Part 36 offer which the defendant fails to beat at trial, the defendant will normally be ordered to pay the claimant’s costs on the indemnity basis (a more generous basis than usual) from the expiry of the relevant period (usually 21 days after the offer was made) together with enhanced interest on both the damages and costs. The claimant may also be awarded an additional amount, which is a prescribed sum calculated as a percentage of the damages awarded up to a maximum of £75,000.

If a defendant makes a Part 36 offer which the claimant fails to beat at trial, the claimant will normally have to pay the defendant’s costs from the expiry of the relevant period, even though the claimant might have technically “won” the case.

Part 36 offers are a powerful tactical tool and should be considered carefully at all stages of litigation. Your lawyers can advise you on when and how to make or respond to a Part 36 offer.

Cost management

In many cases, the court will require the parties to prepare costs budgets setting out their estimated costs for each stage of the proceedings. The court will then review and, if necessary, adjust those budgets. This process is intended to give the parties greater visibility and control over costs as the case progresses.

In multi-track cases valued at less than £10 million, the parties are generally required to file and exchange costs budgets setting out their estimated costs for each stage of the proceedings before the first case management conference. Claims valued at £10 million or more are exempt from costs budgeting, although the court retains a discretion to order it. If a party fails to file a budget where required, they will generally be unable to recover their legal costs from the losing party beyond the applicable court fees.

Unless the parties agree each other's budgets, the court will review and, if necessary, revise the estimates to a level it considers appropriate. At the conclusion of the proceedings, the recoverable costs of the winning party are assessed by reference to the approved budget.

Funding options

There are a number of ways in which litigation can be funded beyond the traditional model of paying your lawyers on an hourly basis as costs are incurred.

Conditional fee agreements (CFAs) - under a CFA, you would pay no fee, or a reduced fee, if the case is unsuccessful. If the case is successful, you would generally pay a higher than normal fee (known as a "success fee"). The success fee cannot be recovered from your opponent.
Damages-based agreements (DBAs) - under a DBA, your lawyers' fees are calculated as a percentage of the damages recovered. DBAs are permitted but are not widely used in practice.
Third-party funding - it may be possible to find a third-party funder who will finance your legal costs, normally in return for a share of the proceeds if the case is successful. If the claim is unsuccessful, the funder could be liable for the opposing party's costs. While the third-party funding market has grown significantly in recent years, the majority of major commercial cases in England and Wales are still funded by conventional means.
Litigation insurance - insurance may be available to cover litigation costs. "Before the event" (BTE) policies can be taken out in advance (usually with an annual premium) to provide cover for future disputes. "After the event" (ATE) policies can be taken out once a dispute has arisen. These policies generally cover a party's own costs as well as the risk of having to pay an opponent's costs if unsuccessful. Insurance premiums cannot be recovered from your opponent, and cover is unlikely to be available if the prospects of success are not good.

Your lawyers can advise you on which funding options may be available and appropriate for your case.

Claims in England and Wales are generally heard in either the County Court or the High Court, depending on the value and complexity of the case.

Claims valued at up to £100,000 must usually be issued in the County Court. Claims above that threshold, or which involve particular complexity, can generally be issued in the High Court.

Most substantial commercial disputes in the High Court will be brought in the Business and Property Courts, which include specialist courts such as the Commercial Court and the Technology and Construction Court. The appropriate court will depend on the nature of the claim.

The English courts may not have jurisdiction to hear your dispute. For example, your contract may contain a clause giving the courts of another country exclusive jurisdiction or may contain an arbitration clause giving jurisdiction to an arbitral tribunal. The English courts will normally respect such clauses. If there is any doubt about jurisdiction or the operation of any arbitration clause, you should take legal advice at an early stage, as jurisdictional challenges can cause significant delay and expense.

Before issuing proceedings, there are a number of practical matters to consider with your lawyers.

Pre-action disclosure

In certain circumstances, it may be appropriate to apply to the court for disclosure of specific documents from an intended defendant before proceedings have been issued. This can help you assess the strength of your claim at an early stage.

Legal privilege

Certain communications, in particular confidential communications between you and your lawyers for the purpose of obtaining legal advice, are protected by legal professional privilege. Privileged documents do not have to be disclosed to the other side during litigation. You should take care when creating documents once a dispute is in prospect to ensure that, where possible, communications are structured so as to attract and preserve privilege. Your lawyers can advise you on how to do this.

See privilege section below.

The defendant's ability to pay

Before bringing a claim, it is important to consider whether the defendant has sufficient assets to meet a judgment, or whether the claim may be covered by insurance. If the defendant lacks the means to pay, there is a risk that even a successful judgment cannot be enforced.

See enforcement section below.

Interim measures

In some cases, urgent court intervention may be needed before proceedings are fully underway. For example, if there is a risk that the defendant may dissipate or move assets out of the jurisdiction, you may need to apply for a freezing order to protect your position. Applications of this kind must be made quickly and often without notice to the other side.

See interim applications section below.

Limitation periods

Claims must be brought within prescribed time limits known as limitation periods. For most contractual and tortious claims, the limitation period is six years from the date on which the cause of action accrued, but different periods apply in some cases. Limitation is a complex area and the applicable period can vary depending on the facts and the type of claim. You should take legal advice at an early stage to ensure that your claim is not time-barred.

Publicity and confidentiality

Court proceedings in England and Wales are generally conducted in public. Hearings are open to the public and the press, and documents filed at court may become part of the public record. Judgments are routinely published online and can attract media attention, particularly in high-value or high-profile disputes.

This is an important consideration when deciding whether to litigate. If confidentiality is a priority, alternative dispute resolution methods such as arbitration or mediation may be preferable, as these are generally conducted in private. In some limited circumstances, the court may agree to restrict public access to certain documents or to anonymise the parties, but such orders are granted only where there is a compelling reason to depart from the principle of open justice.

Preparing your case

A claim is started by a claimant issuing a claim form in the relevant court.

Starting a claim

The claim form must be served on (that is, formally delivered to) the defendant within four months of issue, or six months if the defendant is outside England and Wales. The particulars of claim, which set out the facts on which the claim is based, may be included in the claim form itself or served separately within 14 days of service of the claim form.

The particulars of claim should also set out the remedies being sought from the court, such as damages, an injunction or a declaration. In the Business and Property Courts, the claimant must also provide key documents on which the claim relies, including any documents that are adverse to the claim. A formal search for documents is not required at this stage.

Responding to a claim

If you are served with a claim form, it is very important that you take legal advice immediately. The English courts require strict compliance with procedural deadlines.

The defendant has 14 days to file a defence, or 28 days if an acknowledgment of service has been filed. These deadlines can be extended by agreement or by application to the court, and an extension is often requested in practice. In the Business and Property Courts, the defendant must also provide the key documents on which they rely when filing the defence, including any adverse documents.

If a defendant fails to acknowledge service or file a defence in time, the claimant can normally obtain "judgment in default", which is a judgment in the claimant's favour without a full hearing.

Counterclaims and third parties

A defendant may bring a counterclaim against the claimant if they have their own grounds of claim. A defendant may also seek to bring in a third party as an additional defendant, for example where another party is said to be responsible for the claimant's loss.

Reply

The claimant may, if they wish, serve a reply responding to points raised in the defence.

Case management

After the defence has been served, the parties file directions questionnaires providing the court with information about the case, including the number of witnesses they intend to call. The court will then normally hold a case management conference to set the timetable for the remainder of the proceedings, covering matters such as disclosure, witness evidence, expert evidence and costs budgets. The court will also fix a trial date or trial window.

Timescales vary. In straightforward cases, a trial may take place within a year of the claim being issued. More complex commercial cases typically take between one and three years to reach trial.

Summary judgment and strike out

It may be possible to resolve a case, or a particular issue, without a full trial:

Summary judgment: The court may give summary judgment if it considers that a party has no real prospect of succeeding on its claim or defence and there is no other compelling reason for the case to proceed to trial.
Strike out: The court may strike out a claim or defence, in whole or in part, if it discloses no reasonable grounds, is an abuse of the court's process or a party has failed to comply with a rule or court order.

During the course of proceedings, the parties may need to make applications to the court for orders or directions before the case reaches trial.

These are known as interim applications and can cover a wide range of procedural and substantive matters.

Some of the more common interim applications include:

Interim injunctions: The court can grant an injunction to prevent a party from taking (or to require a party to take) a particular action pending trial. Interim injunctions are typically sought where the applicant can show that there is a serious issue to be tried and that the balance of convenience favours granting the injunction.
Freezing orders: Where there is a risk that a party may dissipate or move its assets to avoid meeting a judgment, the court can make a freezing order prohibiting that party from dealing with its assets up to a specified value. Freezing orders can apply to assets both within and outside the jurisdiction.
Search orders: Where there is reason to believe that a party is holding documents or physical evidence that may be destroyed or concealed, the court can grant a search order permitting the applicant's representatives to enter the respondent's premises to search for and preserve that material. Search orders are granted only in exceptional circumstances and are subject to strict safeguards.
Orders for specific disclosure or further information: A party may apply for an order requiring the other side to disclose specific documents or provide further details of its case in advance of trial.
Security for costs: A defendant may apply for an order requiring the claimant to provide security for the defendant's costs of the proceedings, for example where the claimant is resident outside the jurisdiction or is a company with insufficient assets to meet a costs order.
Unless orders: Where a party has failed to comply with a court order or direction, the other side may apply for an "unless order", which provides that if the defaulting party does not comply by a specified deadline, its claim or defence will be struck out.

In most interim applications, the court will deal with the costs of the application at the hearing or reserve them to be dealt with at trial.

Disclosure is the process by which each party makes available to the other side the documents relevant to the issues in dispute. A case will often turn on the documents that are disclosed.

Disclosure can be one of the most significant and most expensive stages of litigation.

In the Business and Property Courts, disclosure is governed by Practice Direction 57AD, which provides for a range of disclosure models designed to encourage a more targeted and proportionate approach. The available models range from Model A (confined to known adverse documents) through to Model E (the widest, search-based model). Model E will only be ordered in exceptional circumstances. Regardless of which model is adopted, parties are under a continuing duty to disclose known adverse documents. In courts outside the Business and Property Courts, the standard disclosure rules under CPR Part 31 apply.

In advance of the first case management conference, the parties must try to agree their approach to disclosure. At the case management conference, the court will approve the agreed approach or, if the parties have not been able to agree, will determine the appropriate model and scope of disclosure.

Once the scope of disclosure has been determined, the parties must list the relevant documents in their control and make them available for inspection. Each party must certify that it has carried out a reasonable search and complied with its disclosure obligations. Documents cannot generally be withheld simply because they are confidential. However, the court can put in place measures to protect confidential material, such as restricting who may inspect certain documents or establishing a confidentiality ring.

Privileged documents are protected from disclosure and do not have to be provided to the other side.

Privilege is a complex area and you should take specific advice on whether particular documents are protected. In broad terms, there are two main categories of legal privilege:

Legal advice privilege protects confidential communications between a lawyer and their client where the dominant purpose of the communication is to give or receive legal advice. The privilege extends to advice on what should sensibly be done in the relevant legal context, not only to advice on strict legal rights and obligations. Recent case law has confirmed that this privilege can extend to internal communications within a corporate client group where those communications are created for the dominant purpose of seeking legal advice.
Litigation privilege protects communications between a lawyer and their client, or between either of them and a third party, where the dominant purpose of the communication is the conduct of litigation that is pending or reasonably contemplated. This includes communications for the purpose of obtaining evidence or information for use in such litigation.

Documents disclosed by the other side may only be used for the purposes of the proceedings in which they are disclosed. Misuse of disclosed documents can amount to contempt of court.

Before trial, the parties exchange written statements from their witnesses of fact.

These statements stand as the witness's evidence in chief, which means that the witness will not normally repeat their evidence orally at trial. Instead, the witness will be cross-examined on their statement by the opposing party's lawyers.

In the Business and Property Courts, witness statements must comply with Practice Direction 57AC. This requires statements to be confined to evidence of facts within the witness's own knowledge and to identify the source of any matters of information or belief. Courts outside the Business and Property Courts are not formally bound by PD 57AC but will generally expect a similar approach.

It is possible to rely on a witness statement without calling the witness to give oral evidence, although the other party may apply for permission to cross-examine the witness and the court may give the statement less weight if the witness is not available to be tested.

In many cases, the court will require expert evidence on specialist or technical issues.

Experts are generally appointed by the parties, although the court has the power to direct that a single joint expert give evidence on a particular issue. This is usually reserved for relatively uncontroversial matters.

An expert's overriding duty is to the court, not to the party instructing them. This duty takes precedence over any obligation to the instructing party. Expert reports are exchanged before trial and the experts may be ordered to meet to identify areas of agreement and disagreement. At trial, the experts give oral evidence and are cross-examined.

The instructing party pays its expert's fees. These form part of the costs of the proceedings and may be recoverable from the losing party, provided they have been approved in the costs budget.

Trial and enforcement

A trial is the formal court hearing at which each party presents its evidence and legal arguments before a judge, who then determines the disputed issues of fact and law and delivers a binding judgment resolving the claim.

Preparation

In the weeks before trial, the parties must prepare a trial bundle, which is a paginated and indexed set of the key documents the court will need, including the statements of case, witness statements, expert reports and important correspondence. Each party’s advocate will also prepare a skeleton argument, which is a written outline of that party’s case, the issues in dispute, the key legal submissions and the authorities relied on.

The judge

First instance civil cases in England and Wales are tried by a judge sitting alone. There is no jury, save in rare cases in very specific circumstances. Before the trial begins, the judge will normally have read the skeleton arguments, the key documents in the trial bundle and the witness statements and expert reports.

Representation

In the High Court, cases are usually presented by a barrister, although solicitors with higher rights of audience may also do so. In larger and more complex cases, a party may instruct a team of barristers, typically a King's Counsel (KC) leading one or more junior barristers. Barristers in such cases are likely to be instructed from the outset and will be involved in drafting the statements of case and representing the party at hearings throughout the proceedings.

Trial procedure

The trial will normally proceed as follows:

Opening submissions: Each party's advocate makes opening submissions, summarising the key issues and the evidence the court will hear. The claimant's advocate opens first, followed by the defendant's.
Evidence: Witnesses of fact are called to give evidence. Their written witness statements stand as their evidence in chief, so they will not usually repeat their evidence orally. Each witness is then cross-examined by the opposing party's advocate. Expert witnesses are called and cross-examined in the same way. The claimant's witnesses are usually heard first, followed by the defendant's.
Closing submissions: After the evidence has concluded, each party's advocate makes closing submissions, summarising the evidence and the legal arguments. Closing submissions are made orally or in writing, depending on the case.

Open justice

Hearings are generally held in public and there is no restriction on who may attend, whether or not they are connected to the proceedings.

The length of the trial will depend on the complexity of the case and the number of witnesses. Trials in commercial cases can range from a few days to several weeks.

Following trial, the judge usually takes a period of time to write the judgment.

Where judgment is reserved, a draft is typically provided to the parties' legal teams in advance of the formal hand-down, under strict embargo. The purpose of this is to allow the parties to identify any typographical errors or obvious mistakes and to prepare submissions on consequential matters such as costs and permission to appeal. The terms of the embargo will specify whether the decision may be communicated to the client in advance of hand-down. The parties must comply strictly with these terms.

The judgment is formally delivered (known as being "handed down") in court. Once handed down, the judgment is a public document. Judgments of the High Court and above are routinely published online. Only in exceptional circumstances will a court agree that all or part of a judgment should remain confidential.

Following hand-down, there is usually a short hearing at which the court deals with consequential matters, including:

the form of the final order;
costs (which party should pay and on what basis);
any application for permission to appeal; and
any other consequential relief, such as interest on damages or a stay of execution pending appeal.

A party who is dissatisfied with the court's decision may apply for permission to appeal.

Permission may be sought from the court that made the decision (usually at the hand-down hearing) or, if refused, from the appeal court.

The court will only grant permission to appeal if it considers that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard.

The usual appeal routes are from the County Court to the High Court and from the High Court to the Court of Appeal. In exceptional cases, a further appeal may be made to the Supreme Court, which is the final court of appeal.

An appeal is normally a review of the lower court's decision, not a rehearing. The appeal court works from the existing record and will not generally hear new evidence or call witnesses. The appeal court may allow an appeal where it considers that the decision of the lower court was wrong, or was unjust because of a serious procedural or other irregularity. The appeal courts are generally reluctant to overturn a trial judge's findings of fact, particularly where those findings depend on the judge's assessment of the credibility of the witnesses.

A party wishing to appeal must file an appellant's notice within 21 days of the decision being appealed, unless the court directs a different period. A respondent who wishes to uphold the decision for different or additional reasons, or who also seeks permission to appeal, must file a respondent's notice within 14 days of service of the appellant's notice or, if later, of notification that the appellant has been granted permission to appeal.

If a claimant wins at trial, the court will give judgment in their favour. However, a judgment does not guarantee payment. If the defendant does not pay voluntarily, the claimant may need to take steps to enforce the judgment.

Enforcement can be a complex and costly process, and its success will depend on whether the defendant has sufficient assets to satisfy the judgment. This is why it is important to consider the defendant's ability to pay at an early stage.

Common methods of enforcement include:

Writ of control: The court can authorise a High Court Enforcement Officer to attend the debtor's premises, take control of their goods and sell them to satisfy the judgment debt.
Third party debt orders: The court can order that funds owed to the debtor by a third party (for example, funds held in the debtor's bank account) be paid directly to the creditor.
Charging orders: The court can impose a charge over the debtor's property or securities, giving the creditor security for the judgment debt. In some cases, the creditor can then apply for an order for sale of the charged property.
Attachment of earnings orders: Where the debtor is an individual in employment, the court can order that payments be deducted directly from the debtor's earnings.
Insolvency proceedings: A creditor may present a petition to wind up a debtor company or make an individual debtor bankrupt. The threat of insolvency proceedings can itself be an effective means of encouraging payment.
Orders to obtain information: Before taking enforcement action, the creditor can apply for an order requiring the debtor to attend court and provide information about their assets. This is often the first step in the enforcement process.

Practical Considerations

Success in litigation doesn’t just require a strong case. It involves hard work, commitment, careful preparation and a well-conceived strategy.

Get a head start

If possible, spend time investigating your claim before issuing proceedings.

This should include locating relevant documents, speaking to potential witnesses and establishing whether your opponent has sufficient assets to satisfy a judgment and meet a costs order. This will help you to be better prepared, avoid surprises once proceedings begin and gain a clearer picture of your prospects of success.

Seek early advice

Early legal advice is essential. Limitation periods may be about to expire, urgent applications (such as a freezing order) may need to be made, or court deadlines may already be running.

Consider the alternatives

Consider whether alternative dispute resolution could resolve your dispute. The courts expect parties to explore ADR, and it may offer a quicker and less costly route to a satisfactory outcome.

Take care with documents

Take advice on privilege and document preservation at an early stage. It is important not to create documents that could damage your case, and not to destroy documents that may need to be disclosed.

Prepare for disclosure

Disclosure is a central part of English litigation. You will be required to disclose relevant documents, even if they are unhelpful, confidential or embarrassing. Equally, disclosure may provide you with documents from your opponent that strengthen your case.

Make time

Be prepared for the time commitment that litigation requires. Significant management time may be needed to prepare the case, particularly if employees are required to give evidence. In our experience, the more closely a client is involved in their case, the better their prospects of success.

Count the cost

Litigation can be expensive, particularly in large and complex cases that run for several years. Make sure you have a realistic understanding of the likely costs at each stage.

Review your approach regularly

Litigation is a dynamic process. Your strategy and tactics should be reviewed regularly as the case develops, taking into account new evidence, changes in the commercial landscape and the conduct of your opponent.