“To litigate” means to take a claim or dispute to a court of law, albeit with all of the inherent litigation and costs risks associated with court proceedings. “To litigate successfully” means to do so only when this represents the best available course of action, either where alternative forms of dispute resolution (ADR) have been exhausted or ADR is not appropriate — and only once armed with sufficient evidence, and representation, to persuade the court of a viable claim or defence.
Having represented a whole range of clients, both bringing and defending commercial claims, the stage at which a case is litigated, not to mention the extent to which a party is properly prepared for this, can play a key part in the ability of that party to be able to prove or defeat a claim. Below I set out a number of best practice tips for businesses on how they can prepare to litigate successfully, maximising their prospects of a successful outcome, where litigation is otherwise unavoidable.
Be evidentially ready
Regardless of the rights or wrongs of a commercial dispute, a case is only as strong as its evidence. The burden typically falls squarely on the Claimant to prove their claim, on a balance of probabilities, but a Defendant should never rest on their laurels. Both parties must be proactive in gathering evidence in support of their claim or defence, from contractual agreements and other key documentation, to drafting comprehensive witness statements, setting out the finer detail of the case.
Additionally, the parties must be alert to the fact that any correspondence or other discussions recorded in writing, including concessions or admissions in texts or emails, may become disclosable in the context of litigation. These may be potentially damaging, or even fatal, to a claim or defence, where communications that are generated with a view to discussing any dispute should be labelled with the words “without prejudice” so as to avoid eroding a parties’ position.
Be prepared to incur costs
Even where a claim is successfully litigated or defended, this can still involve significant legal costs, including but not limited to the instruction of solicitors and counsel and, in many cases, forensic experts to produce some of that all-important evidence. Equally, not all of these costs may be recoverable, even if a party is successful, together with a very real risk of being ordered to bear some or all of the costs of the other side if an order is made by the court in their favour.
Ultimately, this means that when deciding when to litigate, this should be viewed in the same way as any other business decision, assessing whether the likely costs and return on investment that this will yield is justifiable. In most cases, litigation should only be treated as an option of last resort.
Be professionally represented
Disputes are an unwelcome reality for many businesses, but there are ways of minimising the potentially damaging impact of a dispute, not least in securing professional legal representation to help ensure the right result. In this way, the responsibility of robustly bringing or defending the claim will lie in expert hands, helping a party to safely navigate the potential pitfalls of court orders, directions hearings and, where any attempts at negotiation have failed, a trial or final hearing.
Being given the right legal and tactical advice from the outset of a claim can be key to being able to push a case forward to its quickest conclusion, including knowing when best to compromise and when instead to battle on with sufficient confidence in the merits of a claim or defence. The experience of a seasoned litigator can be an invaluable tool for mitigating commercial risk.
Be open to other ways forward
When entrenched in a dispute, it can be difficult for the parties to take a step back and to objectively re-assess their respective positions. Once court proceedings have been threatened, it can also be difficult for a prospective Claimant and Defendant to be open to finding an alternative way forward.
However, in a commercial context, there are several available forms of ADR to help parties find some common ground, with creative solutions to seemingly impossible contractual scenarios without recourse to time-consuming and costly litigation. With the intervention of a neutral third party, litigation can often be avoided, and costs and any business disruption kept to a minimum.
Finding a compromise should never be perceived as a weakness, but rather can often represent the best interests of the business where the litigation risks are simply too great.
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, November 2022