Commercial Litigation - frequently asked legal questions:
1.When is the best time to consult you in respect of a business dispute?
The short answer is at the earliest possible opportunity. The sooner you seek advice, the sooner we can advise on your strict legal rights and the merits of your case or defence. You can then take a commercial decision based upon this advice, knowing the options available. It is often possible to head off disputes altogether if advice is sought early on. You can consider whether litigation is the best alternative or whether another form of dispute resolution would be better. Steps to mitigate any potential loss can also be put in place at an early stage where necessary. A clear strategy should be determined at the outset which has the likely effect of saving time and money. There is more chance of a successful outcome the sooner the problem is addressed.
2.What will I need to provide to you in order to enable you to advise me?
In an ideal world, and if time permits, you should give us all documents relevant to the dispute, a written brief providing a chronology of relevant events and facts(identifying areas of concern/complaint and the evidence available to support the issues) and the advice required. It is important that you tell us what are your objectives. We will need full contact details of all relevant personnel and, if relevant, witnesses. We can advise on urgent matters on the telephone followed up by an early face to face meeting. The more that you produce to us at the outset ,the clearer the advice can be; it will also save costs.
3.How much will it cost me?
We recognise costs of litigation are always a concern so we will always discuss with you all possible means of funding your case. We may be able to act for you under a Conditional Fee Agreement (commonly known as a “No Win, No Fee Agreement”) which means that we only get paid if you win your case and if you do, then the other side will be ordered to pay your costs. Alternatively, you may have legal expenses insurance (often as part of a household, motor or business insurance policy). This may fund your claim. If you want to fund your case privately, then we will do our best to estimate your likely legal costs before carrying out any work on your behalf. Your costs will very much depend upon the amount of time spent by us but we will always try to keep you updated about fees and you can even put a “costs cap” on them. For privately funded work, we charge by the hour, the rate depending upon the complexity of the issues and the experience of the lawyer.
4.Is there an alternative to going to court?
Going to court is not the only way to resolve a dispute. There are several alternatives to court proceedings which may produce the solution you want, sometimes at less cost. We can discuss these alternative dispute resolution procedures with you at the outset. One such procedure is arbitration. This is an adjudication operating outside the normal court process by which an independent third party reaches a decision which is binding on the parties. Often this can be quicker than litigation and less formal. Another alternative procedure is mediation. This is a means of resolving a dispute by using an independent third party to help the parties reach their own solution, but who cannot impose a solution. It is voluntary and without prejudice, which means that you are free to withdraw from it at any time and proceed to court.
5.Is there a time limit for issuing court proceedings?
The law prescribes fixed periods of time for issuing various types of proceedings. If this period of time elapses without proceedings being issued, the case becomes ‘statute-barred’. Whilst you can still commence your claim, the defendant will have an impregnable defence (if it is raised in his/her defence). For claims founded on contract or tort (i.e. negligence), the basic rule is that the claimant has six years to commence proceedings from the date when the cause of action accrued (i.e. when the breach of contract occurred or when the loss or damage was suffered as a result of the negligence).
6.In which court should I commence my claim?
This will depend on the value of your claim and the complexity of the facts. Generally, claims below £50,000 should be commenced in the county court. If the claim is above £50,000 or if the case is particularly complex, then the claim should be commenced in the High Court.
7.So, if I go to court, will I get my costs back from the other side or will I be ordered to pay their costs? If the claim is worth £5,000 or less (known as a ‘small claim’) then the normal rule is that neither side will be responsible for the other side’s legal costs, irrespective of the outcome. If, however, the claim is worth over £5,000 then the normal rule is that the loser will be ordered to pay the winner’s costs. It is important to understand though that the court has a discretion when making orders about costs. Any costs a loser is ordered to pay will usually be “assessed” (i.e. determined) by the court. This means that the amount the winner receives from the other side might actually be less than his own legal costs. It is still possible, however, for a winner to be awarded indemnity costs (i.e. all of their costs), for example, by making offers to settle. We can of course discuss this issue in further detail during our initial meeting.
8.Do I need a solicitor to go to court?
The short answer is no, you do not. If you have a small claim, then this will be allocated to the small claims track (sometimes mistakenly referred to as the ‘small claims court’). The small claims track is designed so that people can represent themselves – cases will be dealt with quickly and trials will be relatively informal. Claims of more than £5,000, however, will generally be far more complex and stricter court rules will apply. We would always recommend instructing a solicitor in cases worth more than £5,000.
9.Do cases settle before trial?
A large majority of litigation settles before trial. This means that there is every possibility that your case will be settled either before or after the issue of legal proceedings but before trial. A case can settle through negotiation between the parties and their solicitors or through alternative dispute resolution such as mediation.
10.When will the trial take place?
How long a case takes to get to trial depends on a number of factors, such as the amount is dispute, the complexity of the issues and how busy the court is at the time. A small claim might only take a few months to get to trial, whereas a larger, more complex case might take up to a year or more. It is important to understand that litigation is unlikely to offer a quick fix to a problem. Having said that, sometimes it will be necessary to apply to the court for an immediate injunction, in which case the court will usually hear the application straight away.
11.How long will it take for me to get paid if I win my case?
At the end of the trial, the court’s decision will be recorded in a judgment which will state how much the loser has been ordered to pay and by when he has to pay it. Usually the loser will pay this amount without any further action being necessary. However, the judgment will not be enforced automatically by the court. If the loser therefore fails to pay this amount on time, the winner will then have to take steps to enforce the judgment. Such methods of enforcement include execution (i.e. the seizure and sale of the loser’s goods by a court bailiff or enforcement officer), Charging Orders on the loser’s property and bankruptcy/winding-up proceedings (i.e. depending on whether the loser is an individual or a company).
12.What are my chances of winning?
A party can never be sure of success. However, the better prepared your case is and the stronger the evidence you are able to present to the court, then the greater the chance you will have of winning your case. At the outset, we can advise you upon the strengths and weaknesses of your evidence and about your prospects of success at trial.
Please contact us on 020 7420 7020 or enquiry@sethlovis.co.uk for further advice.