How to avoid commercial litigation from the outset
Commercial litigation can best be avoided by ensuring that all terms are covered by written contract or are otherwise covered in written communications. Where terms are orally agreed a dispute is more likely to go to court or settle on unfavourable terms due to the uncertainty in establishing the terms of an agreement. With this in mind it is of paramount importance to seek the advice of a commercial lawyer specialising in drafting contracts. Once it appears that a dispute may arise, it becomes important to record further communications. All too often the party at fault will deny concessions made in oral discussions when it becomes necessary to issue proceedings at a later stage.
Although historically litigation has been the more common method used for businesses and individuals to resolve legal disputes, commercial litigation does not always end in court trials. Alternative dispute resolution is increasingly becoming a prevalent option in today’s fragile economic climate. Unlike litigation, which usually requires a judge to make a legal determination when disputes arise, mediation and dispute resolution allow the parties to talk things out and attempt resolving the issues without court intervention. The objective of any commercial litigation lawyer should be to settle a case on favourable terms without going to trial.For commercial dispute resolution arbitration has become the preferred solution that provides a fast, efficient and commercially appropriate approach to resolving complicated disputes in a reasonable timeframe.
Points to address prior to instructing a commercial litigation solicitor
1 Review what was agreed, and how clear the agreement was.
2 Clarify how the other party has failed to live up to the agreement; consider to what extent you may have contributed.
3 Assess the loss you have suffered as a result; consider any loss they may claim to have suffered.
4 Collate evidence (eg written contracts, correspondence and witness statements).
5 Try to negotiate an amicable resolution; keep evidence of negotiations including copies of letters and notes on conversations.
6 Assess the other party’s ability to pay, for example, by running a credit check (including records of outstanding county court judgments).
7 Take legal advice unless the dispute is straightforward, represents a relatively small amount and runs no risk of a significant counterclaim.
8 Assess whether you have a strong case – how clear the legal position and evidence are – and the risks of a counterclaim or losing in court.
9 Clarify the costs and timescales involved in taking the recommended form of legal action; decide whether it is worth pursuing.
10 Consider how far you are prepared to compromise either by accepting stage payments or partial payment for a quick resolution.
11 Either abandon the claim, or inform the other party in writing of your intention to take legal action; follow the appropriate procedure.
12 Track progress and legal costs as the case proceeds.
13 Continue to be prepared to compromise; accept any reasonable offer to avoid further delays and disruption and the risk of court action.
14 After a successful court case, be prepared to enforce judgment to obtain payment.
Managing Costs of a Commercial Litigation case
One of the most pertinent issues for clients and most challenging aspects of dealing with a commercial dispute are managing costs. We address the issue of costs from initial consultation and throughout the process. We assess the cost/merit benefit of actions to ensure that commercial disputes are dealt with promptly and practically achieving full and final solutions efficiently and cost effectively.
Please contact the commercial litigation department on 0161 832 5000 to discuss any potential case with one of our specialist solicitors.
