Our approach is to identify the strengths and weaknesses early on so that the matter can progress efficiently. It is easy to get drawn down side alleys in litigation but our guidance will help you to avoid this. We consider each case individually and structure a strategy for you based on our experience of how to achieve a successful outcome in the shortest time frame. We work on high value and technically tricky cases. Many of our cases stay out of court as we find a path to resolution before the case reaches a hearing.
Please get in touch for an initial review on prospects of success.
How we resolve business litigation/disputes
Elements of a good litigation/dispute strategy
A good strategy will take into accounts the basics. The basics are:
- Strength of the evidence
- Likely legal costs if you win or lose
- Can the case be settled
Evaluation of the litigation dispute
Obviously evidence plays a major part. But there are also more subtle points which can be dressed up or played down to your advantage. Timing is part of clever evaluation. As is the appetite for risk and the characters involved.
Legal fee costs
We consider for you how much to spend and at what stage of proceedings, mindful of the proportionality requirement. Legal costs do have to be reasonable and proportionate to the matter as discussed. We stop you getting carried away.
Offers to settle the litigation dispute
Ways of offering to resolve the dispute must be considered. Timing and value are important considerations. The first offer has to be pitched to be enticing whilst allowing room for manoeuvre. When to settle and when to fight on are skilful decisions we help you to make.
Practical management of litigation/disputes
Litigation legal fee costs are approached in two ways:
- The first – legislation now imposes a requirement for reasonable and proportionate costs incurred on legal fees.
- The second – a string of recent court decisions striking out unreasonable legal fee costs even for the winner of the case.
Litigation legal fees can be minimised or preserved where:
- A commercial settlement is agreed to bring the litigation dispute to an early end; or
- Costs are effectively managed at all times leading up to either settlement or judgment.
Creative ideas for controlling legal fee costs
From an early stage we will be considering the strategy and routes for resolution:
- Very importantly, how strong is the evidence?
- Are there any initial low-cost ways to bring the other party to the negotiating table before issuing proceedings in court?
- Is mediation likely to be suitable?
- How can we pitch an initial commercial settlement offer to reduce your costs?
- Do we need to apply for an injunction due to concerns over the other party’s ability to pay up?
- Where are the pressure points and weaknesses.
- Are there commercial deadlines we can play to?
Planning from the start is they key to success.
Reducing the legal fees cost risk
Broadly speaking, there are two types of litigation cost orders the court can make on the losing party:
- Standard basis: the loser only has to pay those costs of the winner that are reasonable and proportionate.
- Indemnity basis: the loser will have to pay the winner’s reasonable costs, whether or not they are proportionate. This is not a good position for a loser to be in.
Risk with the standard basis of assessing legal costs for the winner
The risk is that the court orders legal costs be assessed on a standard basis. This means that a winner could receive an award of say £500,000 but face a legal bill of say £1m. The loser then argues that the legal costs are not proportionate – and therefore the winner’s costs not recoverable in full. If the court agrees, the winner then has to foot some of the legal fees cost. Hence – no prizes.
Circumstances justifying adverse legal cost awards in litigation disputes
Certain situations may cause an increase in the size of your legal costs. Examples being where:
- Conduct – the loser has conducted the case in a poor manner. For example, the loser may have made numerous interim applications, each having little merit or application to the case.
- Offers – the winner made numerous offers to the loser. All were rejected or ignored. The court then awarded the winner damages equal to or in excess of the offers made.
- Alternative resolution methods – the loser refused to engage with a mediation offer. Or, the dispute could have been resolved with the opinion of an expert, and offers were rejected or ignored.
The list is not exhaustive and we can advance creative arguments for both the winner or loser depending on where your interests lie.
Negotiation of settlements to settle litigation/disputes
Usually, you will be best served to agree a commercial settlement with the other side. A commercial settlement will not only save on costs but also bring finality to the litigation dispute. Litigation is always a disruptive process to any business.
A commercial settlement agreement can be reached at any time before or during the court litigation process. Obviously, the sooner the case is disposed of the better. But sometimes, there is work to be done by us to create an appetite to settle.
Recording settlement terms
If a settlement is reached it needs to encompass areas which could cause difficulties in the future if not settled. We prepare the written terms of any commercial settlement agreement.
Matters to consider before signing a settlement agreement
Account should be taken before signing of:
1.Any satellite disputes that could arise that you want dealt with as part of the full and final payment.
2.The terms of payment and timing from one party to the other.
3.How legal costs are to be dealt with.
4.If claims have been lodged in court the timescale for withdrawing claims, and the appropriate forms that will be filed in support.
5.Whether any other commercial terms need to be agreed. For example an intellectual property dispute may settle by the owner/proprietor of the IP granting a licence to the infringer on terms including royalty payments.
How the UK legal system can help achieve settlement
The courts operate a number of procedures designed to contain litigation costs. The court procedures also help the parties focus on the risk and address whether there could be an opportunity for settlement outside of court.
The court procedures are summarised below and include:
- Part 36 offers;
- Part admissions of liability; and
- Calderbank offers.
Part 36 offers used in litigation disputes
A Part 36 offer can be used as a cost effective tool to resolve a commercial dispute. An offer must be accepted within 21 days. This is known as the “relevant period”.
How Part 36 offers are used to ramp up the pressure
A Part 36 offer will apply pressure on the person who brought the claim. If a Part 36 offer is made and the other side do not accept then the consequences could be that even if a winner the legal cost award will be curtailed.
Part admissions of liability
Part-admissions of liability can create complexities. The courts have said a payment in “part-admission” of liability does not influence whether the court deems the judgment “more advantageous”. Thus, a party could make:
1.A Part 36 offer of £30,000.00; then
2.Part-admit liability, and offer to pay £10,000.00.
Courts do not “reduce” the sum for the claimant to beat at trial to reflect the £10,000.00 already received. The hurdle is still £30,000.00.
A calderbank offer is an offer of settlement which is kept secret until the court decision. A calderbank offer avoids the drastic consequences of failing to match a Part 36 offer. This is because it is not subject to the same rules as a Part 36 offer.