21 July 2006
Litigation - fighting the war!
Jo Pennycook explores the steps that can be taken to give you the edge in a business dispute.
Of course, litigation should no longer be a war. Nowadays parties are encouraged to resolve differences through alternative dispute resolution procedures, for instance arbitration or mediation. Those advising you and your opponent will have a duty to explore ways of resolving your problems without resorting to lengthy court action. This can be cheaper; it will certainly be quicker!
Whether you press ahead with court action or seek to resolve your differences through alternative means it is always best to be prepared so that you can put your strongest case at any stage, as appropriate.
Firstly, you should always have a clearly defined contract and a perfect record of all aspects of the dispute!
Litigation can be a costly affair both in terms of your time spent away from your core business activities and in legal fees. Here are some suggestions as to how to make the litigation process as straightforward as possible and to put you in the optimum position either to win or at least to come out of the litigation with a satisfactory solution.
- Get early advice. There are tight timescales within which to respond to Court papers. Do not leave this to the last minute as a response will have to be hurried and you will be “on the back foot” from the start.
- Give clear and full instructions from the outset. The more information we have from the start the easier it is to advise you. A portfolio of papers setting out the contract details, notes of variations in the contract, your records of meetings etc. is essential to be able to give full advice of both the strengths and the weaknesses of your position. It is always much easier to advise and plan a strategy if we can anticipate the points being made by the other side.
- Have a clear focus on what you are trying to achieve. Everyone wants to win, but this is not always possible! Most disputes are settled before court action and out of those where court action is commenced most are resolved before trial. Having a clear focus on your strategy and your ultimate objectives helps both you and the lawyer to prepare the case in the best possible way.
- Do not be alarmed by discussions about settlement at an early stage. As I have explained above there is a positive obligation upon lawyers to advise their clients about alternative means of resolving a dispute. Of course, it takes both sides of a dispute to be prepared to settle. If you can present your case clearly and effectively you are more likely to be able to bring the other side to the negotiating table.
- Collect evidence early. If employees are likely to be key witnesses get them to set out their recollections at an early stage. If a key witness is leaving remember to make sure that you secure ongoing cooperation in any litigation and keep contact details for the future. If at all possible an early witness statement at this stage is vital.
There are many key stages of litigation. The emphasis now is very much upon providing early information and detail to try and resolve the case. The more we have from you both in terms of background and objectives the more effective early communications will be.
The key to successful litigation is not only having a good case but being organised in its presentation. With good record keeping and frank and open discussions as litigation progresses you can develop an effective team with your lawyers to put you in the best position to make the litigation process as pain free as possible.