Often the success or failure of a dispute matter will depend in a large part on what steps you have taken in the very early phases (in particular, before the dispute even arose).
In this guide, we set out our top tips in setting your case up for success.
Guidelines for getting the best results from commencing litigation:
- Act as quickly as possible if you want to commence proceedings. There are time limits for commencing certain actions and both the costs involved and the difficulty in drafting the claim increase as time passes. The faster you seek legal assistance, the more likely it is that information will be fresh in your mind, and documentation easy to obtain.
- Make sure your recollection of events is fresh in your mind and make sure you get the facts right. Once you have identified that a matter might be in dispute, start taking notes of any discussions that are being held, and of any past discussions, meetings or correspondence that you can recall. Often even the most simple of discussions can be remembered entirely differently by others involved – the more rigorous you are in keeping notes, the more likely you will be to be able to establish your version of events.
- Make sure you can identify who the real defendant is. Sometimes the defendant is obvious, but other times it may not be so obvious! Many a case has been complicated by a failure to properly understand what the true company or business is that is the party you are in dispute with – particularly when structures such as trusts are involved. Get advice early if you aren’t sure, to ensure that any discussions (for example attempts to “settle” the matter) are with the right party! This is a good reason for ensuring that your internal systems are always thorough in properly identifying people that you are contracting with (such as clients, suppliers etc).
- Consider making an offer to settle early in the proceedings. Even if it’s not accepted, it can be an important tool for securing your costs position.
- Ensure any settlement is properly documented and that all necessary releases are obtained. Don’t do this without proper legal assistance, unless you are absolutely sure that you know what you are doing.
- Compile all relevant documents to the case and ensure you have evidence that can be relied on to prove your case. The earlier you start in preparing your documents, the better.
- You will need reliable witnesses to provide sworn statements should the matter proceed to hearing. Make sure the witnesses you plan to use are credible and have firsthand knowledge of the relevant facts in issue in the proceedings.
Guidelines for defending a claim:
- Respond as soon as possible on receipt of a claim. Ignoring a claim could result in default judgment being entered against you and an order to pay the other side’s costs.
- Bear in mind that court judgments will affect your credit rating and therefore may impact your ability to obtain loans or other credit in the future. So take any litigation matter seriously.
- Get clear on your response. If you don’t think you are the correct Defendant in the matter, or you dispute any other position of the Plaintiff, make sure this is raised as soon as possible.
- If you have an off-set claim against someone else, you may be able to file a cross-claim in the same proceedings. Raise this issue at the outset with your lawyer
- Think about how you will respond to each section of the claim and collate any documents that may be relevant in defending the proceedings, to ensure your lawyer has all of the information required to get you the best result.
- Consider accepting any reasonable offer that’s made to settle the proceedings or consider making an offer to the Plaintiff. You may find that a reasonable offer settles the proceedings and saves you time, money and effort.
Costs in commencing or defending proceedings
Generally, in litigation costs follow the event. That means that if you are successful in either commencing or defending a claim, your costs will be paid by the other party. It is important to note that even where costs are awarded in your favour, you will usually only recover 65% of your total costs.
Just as costs could be awarded in your favour, you could also end up with a costs order against you if you are unsuccessful in bringing or defending a claim. In those circumstances, you would also have to pay your own legal costs of and incidental to the proceedings.
And finally, remember that litigation can be costly and uncertain. Preparation is the key and acting swiftly could save you valuable time and money.
If you are involved in a dispute that might require litigation, we are available for a free discussion about the options available. Simply contact us – by phone on 02 8006 0830 or by email – and we will be in touch for a free initial discussion.
