If you have a dispute which is making you want to rush off to issue court proceedings, take a few minutes to consider what will be better in the long run.
As a Department, Elizabeth and I are often asked to advise companies and individuals on whether they should take Court action against another party. In some cases our clients may have decided to commence the proceedings themselves and then have found they have got into difficulties as the claim has progressed and they need help with Court procedures or with formulating the claim.
With that in mind here is our guide to the preliminary considerations you should make, whatever the type of claim you intend to pursue, before rushing off to issue proceedings.
- Who is your Defendant? Make sure you sue the right person. For these purposes a “person” can be a living and breathing being or it can be a limited company. If you contracted with a limited company make sure that if a dispute arises that you sue the company and not the individual with whom you have been dealing.
- Are they (a company or an individual) likely to have the resources to meet the judgment you hope to obtain? There is no point in suing a “man or straw”.
- Where are they based? Suing a foreign based company can be very difficult and issues can arise as to the applicable law.
- You also have to consider how you will enforce any judgment that you do obtain. There are reciprocal agreements with many countries but it is an added complicating factor and not one to be undertaken lightly in any but the most substantial debts or claims.
- Is it economically viable to pursue? Litigation is a very expensive process and time consuming. In addition to legal fees there are also the costs of management time or a person’s own individual commitment that is required to provide instructions to us, to assist with drafting witness statements and providing documents for disclosure as well as attending court. The Courts will now only allow a party to recover their costs if they are reasonable and proportionate to the claim at stake.
- How long ago did the dispute arise? It is best not to let years pass before taking action because not only do memories fade, potential witnesses move away (or die) but there are time limits for bringing claims (called limitation periods) and if you don’t issue court proceedings within them, it might not be possible to pursue the claim at all.
- Be pragmatic. Adopting a realistic attitude towards one’s case, taking into account all the above factors and considering whether settlement should be proposed sooner rather than later, whether through mediation or any other form of alternative dispute resolution, should not always be seen as a sign of weakness. The Courts are very keen for litigants to attempt mediation and a successful party can be refused their costs even if they win if they have unreasonably refused to engage in mediation.
- Finally, never litigate on principle. Court proceedings should only be issued if there is no other reasonable alternative and settlement is not possible by way of negotiation. In some cases, such as where there has been a theft of company data and the remedy being sought is a non-financial one then different considerations can apply but thought should always be had for the issues at stake and the importance of the dispute in comparison to its value.
We always aim to advise on these issues when we meet clients, whether for the first time or for the umpteenth. If you have a potential dispute and you would like advice please do come and talk to us. We are able to offer an initial fixed fee interview to cover the first meeting to provide an initial assessment and it may well be cheaper in the long run to take some preliminary advice before rushing off to court.