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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; and
- 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 “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 7 or 14 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 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 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 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. Please ask us for details.
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 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 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.
What areas of Law do you specialise in?
Our Dispute Resolution team specialise in the following areas of law:
- Debt recovery
- Contractual disputes
- Negligence, including professional negligence
- Land disputes including landlord and tenant
- Commercial and corporate disputes including shareholder/ partnership disputes/ claims
- Contested probate including inheritance claims
- See our website for further detailed lists
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