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Helen Brown | 7th October 2019

Dispute Resolution – Is your solicitor playing to win?


Helen Brown | 7th October 2019

Dispute Resolution – Is your solicitor playing to win?

This blog is intended to give you some ideas of strategies your lawyer may not have thought of to help you win your case.

You have a problem. You need a solution. So you make an appointment with your usual solicitor in the local town. They talk you through the court process. It all sounds very expensive and time consuming. You just want to resolve your dispute, not become a case study on a lawyer’s website. All litigation lawyers know the law – they have to pass exams after all and they should all know the court rules. But do they know them inside out, and do they know how to use them to win? So many lawyers just go through the motions – issue your claim at court, explain the other party’s defence to you, ask you for reams of documents to “disclose”, and type up convoluted witness statements. The next thing you know you are being told you need £X thousand for a barrister but you could always try and “do a deal”.

What you haven’t been aware of is all the tactical mistakes the other side has made, and all the opportunities missed by your lawyer to knock the other party out at an early stage, or make life so difficult for them that they have no option but to make you a decent offer to settle early, before you incur thousands of pounds in legal costs.

Here are some ideas your own lawyer may not have thought of:

  1. Apply to strike out the defence on the basis that the defence shows no reasonable grounds to defend the claim.
  2. Apply for pre-action disclosure of documents. This will help you assess the strength of the other party’s case before you commit to pay that huge court fee and check whether they have that “smoking gun” (which actually rarely exists).
  3. Apply for security for costs. If you are the defendant, or your defendant brings a counterclaim against you, you can force a company with poor credit rating or a party resident abroad to pay money into court which will be available to you if you win the case. It has the added consequence of depleting their fighting fund and might bring them to the table early.
  4. Apply for an interim payment. This is so infrequently used, but all you need to show is that the other party is likely to have to pay you a substantial amount of money at trial. It is particularly useful if you are only really arguing about how much the other party will end up paying you.
  5. Make a Part 36 offer to settle. This is not used often in commercial cases, but it can be useful in all cases to put another party at risk of paying extra damages and/or interest if they fail to “beat” your offer at a trial.
  6. Offer to take part in mediation. There is no rule which says a court can force a party to mediate, but in effect the recent case law indicates that the courts will penalise a party if it either ignores an offer to mediate or refuses point blank to mediate. A party will be penalised even if it refuses because it knows that it will not end up paying the other side a penny. In the case of Laporte -v- Metropolitan Police Commissioner (2015) the defendant refused to mediate and even though the defendant won, one third of their costs were disallowed as a result of their refusal to mediate.

There are sometimes risks in taking one or more of the above steps. If it involves a court application, the court will expect your application to fulfill a particular strategy, either to save costs, to reduce use of the court’s resources or to help the judge to manage the case. But on many occasions the benefit outweighs the risk.

So next time you have a dispute, ask your solicitor how they are going to use the rules to win.

Take a look at our business and commercial disputes page to see the range of services we offer or contact me to find out more.

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