Settling Disputes Without Recourse to Litigation

Settling disputes without recourse to litigation

The idea of going to court can seem intimidating although, with the assistance of a skilled and experienced lawyer, your case may not need to go to trial. With the right strategic approach, using tactics specifically tailored to the facts of your case, it may be possible to settle your commercial dispute on mutually agreeable terms. Settling a dispute without recourse to litigation is by no means guaranteed, but having a commercially-savvy solicitor in your corner can help to ensure that you avoid the expense, time, stress and uncertainty typically associated with legal proceedings.

Having represented a multitude of clients, both bringing and defending claims in the context of commercial litigation, I have the necessary skillset and expertise to robustly pursue or defend a whole range of contentious matters before the courts — if necessary. However, I also have the negotiating skills and creativity to unlock alternative and more cost-effective ways forward.

Below I set out the three key reasons in support of settlement as an alternative option to going to trial. By working closely with my clients, including professionals and businesses alike, it is often possible to resolve even the most entrenched dispute without ever seeing the inside of a courtroom.

The cost of contentious litigation

Even where a claim is successfully brought or defeated, and the court ultimately finds in your favour, there can still be significant legal costs involved, not all of which may be recoverable from the other side. The general rule is that costs follow the event, in other words, the successful party can recover its costs from the unsuccessful party. However, this rarely means that the winning side will recover 100% of those costs, where the court will typically assess the costs payable as a proportion of the sums claimed, potentially leaving you with a sizeable bill still left to pay.

This is also the best-case scenario. For the unsuccessful party, the overall cost of running a case to trial is rarely worth the risk of losing, leaving that party with a potential liability to pay not only its own legal costs, but the lion’s share of the other sides too. As such, if the cost of litigation is likely to exceed the value of the claim, it may make very little business sense to battle on regardless.

The time it takes to litigate a case

Even with professional legal representatives on both sides, at all times seeking to drive the litigation to its earliest conclusion, the progress of any case will inevitably be dictated by the directions imposed by the court to get the matter ready for trial. Depending on the complexity of the claim, it is not uncommon to have multiple pre-trial hearings, including case management hearings and, in some cases, interim applications in which a party seeks an order or additional directions before trial. Needless to say, the court’s standard timetable which, of itself, will usually run into several months, together with any additional pre-trial hearings, can make litigation an agonisingly time-consuming exercise for busy professionals and businesses whose time is often better invested in their own progress. The legal costs of multiple court appearances prior to the substantive hearing of the matter, either in-person, or via your solicitors and/or counsel, can also be significant.

The stress and uncertainty of trial

Even where a claim or defence has excellent prospects of success, litigation can be unpredictable, no matter how strong the merits of the case may appear to be on paper. Having gone down the litigation road, there lies ahead a long and often arduous process for the parties to navigate, with potentially all manner of procedural pitfalls along the way — from whether permission will be granted by the court to rely on key evidence in support of your case to the extent to which any post- action disclosure will reveal documentation that could seriously undermine your case.

Equally, once the matter reaches trial, there are various evidential hurdles that must still be cleared, not least when a case is heavily reliant on the oral testimony of any witnesses that may not stand up to cross-examination. For the professional or business whose reputation relies on a positive outcome, the impact of unsuccessful litigation can often be difficult to recover from. In stark contrast, settlement can not only save you the expense, time, stress and uncertainty of litigating your dispute, a negotiated settlement can help to keep your reputation and business brand intact. It can also preserve any valuable working relationship with your opponent who, prior to any dispute, may have represented an important client or customer to your practice or business.

Legal disclaimer

The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.

Before acting on any of the information contained herein, expert advice should always be sought.

©Melissa Worth, January 2023