Civil Litigation

There are alternative dispute resolution processes which can, and in some cases, must be considered. These are an alternative to court proceedings.

These include written, without prejudice negotiations, face to face meetings, formal mediation, expert determination, mediation and arbitration. The effectiveness of these processes depends on the parties’ willingness to compromise and some options may be more effective than others, depending on the type of case.

For example, boundary disputes are very conducive to expert determination and mediation, where an independent third party surveyor can try to assist the parties with reaching an agreement at a site mediation. In more complex construction disputes, the parties are expected to have a face to face without prejudice meeting.

In every case, there should be some attempt at without prejudice, written or telephone negotiations.

For most cases, we would charge on an hourly rate basis but every case and client is different.

We are more than happy to consider funding options including fixed fees, fee caps and alternative funding arrangements like ‘no win, no fee‘ agreements or damages-based agreements with clients.

Please do not be afraid to ask – we are very approachable. However, it is important that clients understand that we are a business and it might not be economically viable for us to offer certain things.

What a client is prepared to offer or accept in settlement depends on a client’s appetite for risk and willingness to accept the aggravation and cost of dealing with a claim. The strength of any claim is also an important factor to consider the strength of the parties’ positions and risk in the case also needs to be considered.

The cost of getting the matter to a conclusion is a consideration, as there will normally be an element of irrecoverable cost to a client.

There is no specific rule about what an offer should be, as every case and every client is different.

This depends on a large number of factors, but broadly how complex the matter is and how much work will be required. We do not charge based on how long a matter takes to resolve, but on how much work it takes to resolve it.

Clearly, achieving an early settlement means that less work is required than going all the way to a defended trial and taking all of the steps necessary to get there. However, sometimes it is necessary to take certain steps before a settlement can be achieved.

Two particularly important stages of litigation are disclosure, when the parties formally exchange documentation about the claim, and exchange of witness statements, when the parties set out the detail of the facts of the case.

However, it does take time to reach these stages and deal with them properly, which is why the Court expects a party, to a lesser extent, undertake these steps before issuing a claim, as it can lead to settlement once each party can consider the evidence and basis of the claim.

Separate steps will need to be taken to enforce a judgment if a judgment debtor does not pay.

This can include instructing bailiffs, securing a charge for the debt against property, obtaining an order that the debtor’s employer pay a proportion of the debt directly from the debtors wages or seeking an order that a third party who owes the debtor pays the creditor the money owed instead.

These steps all have a cost implication, so it is important that before any claim is issued, some consideration is given to the financial circumstances of the other party.

If a debtor has no money or assets, the judgment may go unpaid.

Depending on the type of claim, the Court has set down a number of rules, called Pre-action Protocols, which set out the expected conduct of a potential litigant. If no specific Protocol applies, there is a general Practice Direction which will apply.

Broadly, any formal litigation or court process is expected to be the last resort. The parties are expected to behave reasonably, giving each other time to set out their respective cases, provide evidence and discuss settlement.

The failure to observe this conduct can lead to a Court penalising a defaulting party.

You may very well be an expert in your trade. We are regularly instructed by professionals and tradespeople who, to them, the matter appears very straight forward.

However, where there are technical arguments about things, the Court expects expert evidence on the point to be provided. This can be done by appointing separate experts or by jointly instructing a single expert.

For example, we have been instructed in cases involving alleged negligence by surveyors, in which there are very technical arguments about subsidence or the historical movement of a property. The surveyor will clearly seek to argue that there is no subsidence whereas the property owner would seek to argue that there is. The Court will expect expert evidence on the point from third parties to be provided. Sometimes, cases involve complicated forensic analysis, for which an expert accountant will be required.

We will advise you about the need to obtain expert evidence and when this might be appropriate.

There are several reasons why this is important.

Firstly, the Courts expect all parties to behave reasonably and to try to settle their matters. This is not the same as saying someone must make an offer of settlement but it is important that clients understand that if an offer of settlement is not made and there is no attempt to settle a case, then the Court can take this into consideration on whether or not to award a party their legal costs.

Secondly, a good offer of settlement does have tactical value. If it is beaten at trial, this can later be highlighted and the Court might look favourably on this and consider awarding a greater portion of the offeror’s legal costs.

There are also some special types of offers which can be made, called Part 36 Offers, which if beaten at trial, will significantly improve the prospect of a more favourable costs award being made for the offeror.

However, an offer of settlement must be genuine. If a Court considers that it was made solely for the purpose of securing a tactical benefit, the Court is likely to disregard it when considering what costs to award.

The basic position is that “costs follow the event”. This means that if you are successful in bringing or defending a claim, then you will also be awarded your legal costs.

Depending on the type of claim, the Court will assess what proportion of the legal costs should be paid by the losing party, taking into account various things, including the value of the claim, amount of work undertaken and attempts to settle.

In higher value claims, this process is called detailed assessment and involves following a specific process until, if an agreement cannot be reached, a court hearing takes place. This will involve incurring further legal costs, some of which may also be recoverable from the losing party.

In lower value claims, the court will normally undertake a summary assessment of the legal costs. This is a rough and ready assessment of what costs the Court considers should be payable by a party and normally takes place after a hearing, during which arguments about the costs are heard.

For claimants, it is also important to understand that if a claim is issued but not defended, then the costs that can be recovered are called fixed costs and are very low and in the region of around £130. Fixed costs apply in some other circumstances, for example, in possession claims.

Because of the way in which the Court works, it is not often that a winning party will be awarded all of the legal costs that they incur.

The simple answer to this is no.

Generally speaking, only a Court or tribunal can order one party to pay the other party’s legal costs. Before a claim is issued, the Court has no jurisdiction to do this. Once a claim is issued, then the pre-action cost incurred can be claimed. However, someone would be ill advised to issue their claim without going through the expected attempts to reach an agreement first.

Special types of offer, called Part 36 Offers, can sometimes be made and, if accepted, would entitle a party to claim their legal costs up to the date of acceptance.

There may also be a contractual right to claim the costs of dealing with the dispute, depending on the terms of any contract involved.

We obviously try to identify relevant evidence and law which is in your favour at an early stage and consider that which is not. However, this is an ongoing process and certain facts and evidence might not immediately be identified at the outset. If, following what is an ongoing assessment, it is clear that a case will be won or lost, you will be advised of this.

However, there would be no need for lawyers if the law was always black and white. Cases very rarely go to trial or are argued about if they are clear cut. Very strong or weak cases normally settle before incurring the cost and risk of court proceedings on the best terms possible. Cases that go to trial are those which have arguable points and could often go either way.

A lot of the time we are not able to advise clients conclusively about whether or not their case will be successful because there are a lot of variables. The best that is normally possible is to provide a risk assessment, based on the evidence before us and relevant law. This is broadly called “litigation risk” and exists in every case. Litigation risk is something that needs to be considered at all times and in deciding on what steps to take in a case. Also, every client is different and ultimately it is up to them to decide where to draw the line based on our advice and what risks they are willing to take.