Monday, April 6th, 2020
You find yourself embroiled in a dispute and cannot see any other way of resolution other than to let the court decide. You imagine your day at trial, putting the other side to rights and walking out of court with the irridescent glow of victory. Then you realise it may not work out like that. You ask yourself whether litigating is really what you want to do and get cold feet at the prospect of issuing formal court proceedings.
Do you go ahead or not? Here are five factors to consider before you proceed with litigation.
1. Strength of your case
This is where obtaining quality legal advice is of paramount importance. The most critical factor to a successful outcome in court is having a case which, on its merits, is credible and persuasive to a judge. You are not in a position to make a judgment as to how strong your case is, but your lawyer is there for that very purpose. If the advice is that your case has low prospects and that you ought to avoid court by settling, listen to it and recalibrate your strategy accordingly. On the other hand, if prospects are good, you at least have the scope to enter court proceedings knowing that, whilst the risk of litigating is always present, you have a fighting chance. Make sure you instruct a lawyer who can provide the best and most honest appraisal of your prospects throughout the matter as it develops.
A well-worn truism it may be but going to court and litigating really does cost a lot of money! As a rough rule of thumb, the more is at stake, the more the legal costs are. In a typical commercial dispute for example, you must factor in solicitors’ fees, barristers’ fees and court fees as a bare minimum. There might be the need to instruct experts to provide reports and possibly attend court for trial if necessary in certain disputes. The costs of certain aspects of the process such as the disclosure process, obtaining witness statements, interim conferences/hearings, trial preparation and trial itself can be incredibly high. It follows that the advice to prospective litigants is this – if you pursue litigation, you must be able to pay for it from start to finish.
Litigation is not what you see on the television. There is no courtroom drama with judges banging their gavels shouting “Order!” Litigating is conducted in a more low-key fashion. For some, the stress of litigation is one they have broad enough shoulders to cope with through its peaks and troughs – remember, litigation can go on for years. Others find it too much to bear and in the worst cases, it can adversely impact their mental and physical health. Your lawyer should be able to ascertain this through meetings and other conversations, but you need to be true to yourself as to your genuine appetite for litigation and capacity for taking it all the way.
4. Commercial viability
This is often more of a concern for businesses but relates to individuals too. An occupational hazard of the world we live in is that people can and often do bad things and our natural instinct is to punish them and satisfy our sense of natural justice. By way of example, you may have paid £15,000 to a building company for a conservatory which ends up being substandard. If this is a large, financially secure business, it may well be worth issuing proceedings against them if that is what it takes to recoup some or all of your money. However, if your lawyer carries out the relevant Companies House research and discovers the business is on the brink of insolvency with no assets – meaning that even a favourable judgment in court has no prospect of being enforced – however difficult it is to stomach, it may be worth opting to accept this as a bad incident and move on, rather than throwing more good money after bad.
Is there really no other way? Is going to court, being the action of last resort, really what is needed to resolve your dispute? Or is there an alternative? Is a good settlement achievable? Is it the case for example, that whilst you may have a dispute with another party, you would not wish to burn bridges and instead explore the possibility of working with them again if the relationship and trust can be salvaged? As much as lawyers exist to advise on the legal position, we are also able to consider the practicalities of the matter and these assume great significance when providing advice. If practical measures exist to avoid court, pursue them first. Do not rush straight into litigating without thinking unless you have no choice, as only fools rush in.
Abeer Sharma is a Solicitor in Hanne & Co’s Property Litigation & Dispute Resolution Team