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Dispute Resolution for Individuals

Dispute Resolution for Individuals

Personal Law

Meet David Mallinson

Head of Department

Most people will be involved in some kind of dispute at some point in their lives perhaps in relation to a product or a service or with a neighbour or even with a family member over the terms of a Will.

If you are involved in a personal dispute our Dispute Resolution team is able to offer you friendly advice from initial informal guidance, through to full representation in court if required.

In any dispute, it is important to seek advice as early as possible before the situation spirals out of control. A dispute resolution solicitor in our team will be able to assist and guide you towards a cost effective and speedy resolution of any dispute or issues which you may be experiencing, whether you wish to start proceedings or are subject yourself to a claim made by another.

We are familiar with the expense and the pressures which can be created by different forms of dispute, and we will always do our best to minimise the impact of these issues. Litigation (the process of taking a case to court) can be expensive, so we offer clients advice on a variety of Alternative Dispute Resolution (ADR) options.

Our solicitors have a wealth of experience in resolving conflicts and can provide advice and assistance which includes the following areas:

What will I need to provide to you in order to enable you to advise me?

For our Dispute Resolution team to be in the best position to fully advise you of your position, we would need:

  • all documents relevant to the dispute
  • a chronology of relevant events and facts
  • your areas of concern and/or complaint
  • the advice you consider you require
  • and any other matters which you consider relevant to the dispute.
Legal costs

We are familiar with the expense and the pressures which can be created by disputes in all their forms, and we will always do our best to minimise the impact of these issues. Legal costs can become an additional burden, so we are flexible about funding arrangements. We recommend, for example, that clients initially check their own household insurance policies, as increasingly these do provide cover for certain types of dispute.

Conditional Fee Agreement (CFA)

For some matters it may be appropriate to use a Conditional Fee Agreement and we will discuss this with you.

Conditional Fee Agreement – Our Terms

Where we provide representation under a Conditional Fee Agreement, you will be required to fund our success fee from your damages upon the successful conclusion of your claim. This is calculated as a percentage uplift of our normal (“base”) chargeable costs and will typically be within the range of 50% – 70% but cannot exceed 100%. The precise terms of the CFA would be negotiated and agreed with you prior to commencement. You will also be required to pay any insurance premium you have elected to take out from your damages upon the successful conclusion of your claim.

If the claim fails, you would have to pay disbursements (the money which we have to pay to other people for example expert reports, Court fees, Counsel etc.) but we can arrange legal expenses insurance for you which would cover these disbursements so there would then be nothing at all to pay if the claim should fail.

If you terminate the Conditional Fee Agreement against our advice, we then have the right to decide whether 1) you must pay our basic charges and our expenses and disbursements including barristers’ fees (but not the success fee) or 2) pay our basic charges, and our expenses and disbursements including barristers’ fees and success fees if you go on to win your claim for damages.

If a finding of fundamental dishonesty is found your claim would be struck out and you would be required to pay our basic charges, and our expenses and disbursements as well as the basic charges, and expenses and disbursements of your opponent.

The Conditional Fee Agreement automatically ends if you die before your claim for damages is concluded. We will be entitled to recover our basic charges up to the date of your death from your estate. If your personal representatives wish to continue your claim for damages, we may offer them a new conditional fee agreement, as long as they agree to pay the success fee on our basic charges from the beginning of the agreement with you.

In order to assess whether we would be willing to undertake a specific matter on this basis an initial assessment of the merits and value of any claim (and the strength of any defence which has been raised) would be undertaken initially and reviewed by the departmental manager and managing partner of the firm. This would normally involve an internal process only but where we consider that obtaining external counsel’s opinion is a requirement in order to gauge the merits and prospects for success of the claim that advice from counsel will usually incur a fee of between £1000 plus VAT and £2500 plus VAT, depending on the precise issues involved. An advice from counsel would be required for example in the context of any policy of insurance which is applied for to cover the potential for adverse costs which may be awarded against the client if the claim is ultimately unsuccessful. In the event that we intend to render any fee for our work in obtaining an advice from counsel at the preliminary stage we will notify you at the time and in advance, although we would not expect that to be any more than 2-4 hours in the majority of instances.

If you find yourself involved in any type of dispute or potential claim, please speak to a member of our resolution team to see if we can help. We are also able to refer you to other specialists for assistance such as an accountant, an insolvency practitioner or a surveyor, with whom we have close professional contacts.

If you are involved in a personal dispute it is important to seek advice as early as possible, please contact a member of our Dispute Resolution team. Girlings has offices in Canterbury, Ashford and Herne Bay.

Our Experts

David Mallinson

Head of Department
Dispute Resolution

Nicola Webster

Senior Associate Solicitor
Dispute Resolution

Lee Quickenden

Associate (FCILEx)
Dispute Resolution

Rebecca Page

Debt Recovery Manager
Debt Recovery

Sophia Wright

Paralegal
Wills, Tax & Estate Administration; Dispute Resolution

Anna Ayling

Trainee Solicitor
Dispute Resolution

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FREQUENTLY ASKED QUESTIONS

When should I instruct solicitors?

The short answer is as soon as practicably possible. The earlier advice is sought the sooner you can be advised of your legal rights, position and the resolution options available to you. Typically there may be more options available to you and the dispute is generally easier to resolve before any significant loss has been incurred. Delay may not only prejudice your position but you may unintentionally take steps which damage your position that could reduce the prospect of a successful outcome.

Why should I instruct solicitors?

Our solicitors use their expertise to advise clients every day on the most cost effective way to pursue, defend or settle disputes. Objective analysis of a dispute is invaluable where significant costs could otherwise be incurred.

To some the prospect of litigation is too intimidating to carry through. We can support you as you progress, or alternatively take conduct of the running of the case. This can take the stress out of the process.

The nature of your instructions to us can be tailored to your specific requirements and can be limited to an initial consultation or to run the case from start to finish, or anywhere in between.

What methods are there for resolution of disputes?
  • Litigation is one of a number of methods of dispute resolution. It is a formal Court process culminating in the award and potential enforcement of a Court Judgment in favour of the ‘successful’ party in the dispute.
  • Alternative Dispute Resolution (ADR) can be used in conjunction with Litigation, or as a stand alone process. Due to the relatively high cost of traditional forms of Litigation, in particular Court proceedings, parties to a dispute are encouraged to attempt to resolve the issues by ADR in a commercially motivated and co-operative way wherever possible. To encourage the use of ADR cost penalties can be imposed by a Court on a party that unreasonably refuses to engage in some form of ADR process. The most common forms of ADR include: Arbitration; Mediation; Early Neutral Evaluation; or Without Prejudice Negotiation.
  • Mediation, perhaps the most frequently proposed, involves the use of an impartial third party (a mediator) to facilitate a resolution through a confidential process. Costs are still incurred in relation to any of these procedures but they are certainly less than would be incurred by pursuing a claim through to a formal trial process.
  • Arbitration is the use of an impartial and independent third party acting as judge to decide the outcome of a dispute outside of the Court. The litigation and arbitration process share similar features but the main difference is that arbitration is typically carried out in private. An arbitration award is legally binding on both parties and is enforceable in the Courts.
  • Negotiation is where the parties attempt to reach settlement (usually through their legal representatives) without the use of the Courts or any form of intermediary. This is typically the most cost effective method of ADR as it does not normally require the instruction of a third party to assist the parties in reaching an agreement.
What are pre-action protocols?

The protocols set out the best practice that should be adopted by parties to a dispute before any proceedings are issued. The broad aim of the protocols is to:

  • Encourage the early exchange of information and documents about a prospective claim.
  • Enable parties to avoid litigation by agreeing a settlement before proceedings are commenced.
  • Support the efficient management of proceedings where litigation cannot be avoided.
If ADR is unsuccessful, how are proceedings commenced?

As emphasised by the pre-action protocols, parties are encouraged to avoid court proceedings. A claimant should first send a formal 'letter of claim' to the potential defendant/s to encourage discussions. If a response is not received within a reasonable time (which will vary depending on what type of claim it is but would not normally be less than 21 days) proceedings can be prepared, issued at court and formally served. Once issued, the defendant will have 14 days to file an acknowledgement of service and a further 14 days to file a defence to the claim (which can be extended by up to 28 days if agreed between the parties in writing). Assuming the defendant files a defence the court will provisionally allocate the claim to one of the three tracks; Small Claims Track; Fast Track; or Multi Track depending on the complexity of the legal issues and the monetary value of the claim.

How long will it take to resolve a dispute and what will it cost?

Due to the broad range of matters which can be litigated it is difficult at the early stages to calculate precisely how long resolution of a matter may take or how much it will cost. These calculations are subject to variables including: complexity of law and fact; the approach taken by the opposing party; availability of court time; and the willingness of the parties to come to a negotiated settlement. Nonetheless your matter will always be dealt with promptly and professionally.

Matters are most commonly invoiced on a ‘time spent’ basis at an hourly rate based on the experience of the solicitor used. Whilst each party is liable for their own legal costs as a matter proceeds usually they can be recovered, at least in part, from the unsuccessful party.

We will provide you with a cost estimate and update you at various stages throughout the process. Some instructions can be undertaken on a ‘fixed fee’ basis which can provide certainty with regards to costs.

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