Before you litigate: practical considerations

June 21, 2018

Litigation can be a costly and time-consuming process.  However, it can be a necessary step to obtaining the legal remedy you need and more often than not, disputes can be resolved at an earlier stage through “alternative dispute resolution” (ADR) methods such as mediation.

Before embarking on litigation, we give careful consideration, with you, to various practical considerations to ensure it is in your best interests to take this step.

The following are some of the key issues that you should consider before embarking upon litigation and which we will also consider with you:

• What you are hoping to achieve from the litigation process – what is the legal remedy that you are seeking?
• Do not underestimate the likely timescale of resolving the dispute.  The court process usually takes many months – sometimes up to two years in more complex matters.
• Consider the hidden cost of management time in the absence of an early settlement.  This is rarely recoverable even when you win a case.
• How easy/difficult is it to prove your case? For example, who are likely to be the key witnesses? Are they alive, in good health and in this country? Are they still employed by you (if you are a business client) and, if not, can they be traced? Do the key documents still exist? If reliance is to be placed on records, do you know who produced them?
• Are the defendant’s whereabouts known?
• Is the prospective defendant solvent? Does the prospective defendant have assets in England and Wales?  This consideration is important to establish whether or not you will be able to enforce any eventual judgment or award against the defendant’s assets and how simple it will be to do so.  There is little point in incurring the costs of litigation and being awarded a final judgment in your favour if the Defendant is unable to satisfy it.

The costs-benefit ratio of pursuing a dispute is something that should be evaluated before embarking on the process and kept under review as the matter progresses.  Whilst the process may appear daunting, it is always best to be prepared and to have carefully evaluated and understood your position.  We are able to advise you upon and guide you through the process.

If you need further advice in relation to a dispute or potential dispute, please call and ask to speak to a member of our dispute resolution team.

This briefing just provides an overview of the law in this area, it is not legal advice and should not be treated or relied upon as such. You should talk to us for a complete understanding of the law and how it may affect your particular circumstances.