Although it can be unsettling to consider that there are limits to how courts are operating, this does not mean that our justice system is grinding to a halt. Alongside the new methods of managing hearings and document submissions, the potential delays to court processes can provide a slightly more relaxed context within which to explore alternative means of dispute resolution.
It is worth bearing in mind that parties to litigation are always expected to try to resolve their disputes amicably, and without resorting to litigation. The Civil Procedure Rules 1998 contain a number of specialised Pre-Action Protocols, as well as a general Pre-Action Conduct Practice Direction, setting out the steps that should be followed before issuing a claim, and costs penalties can be levied against parties that do not comply with the required steps.
Essentially the idea is that each party should make the facts and legal basis of their case clear to the other, with a view to attempting to resolve the matter without involving the courts. This should mean that, if it is not possible to resolve the matter, the parties’ cases are (fairly) neatly set out at the start of a matter, which, in our experience, is one of the most important factors in keeping costs down during litigation. Therefore, proper compliance with the Protocols offers a good chance of settling a matter or, alternatively, of reducing the inevitably large bill that will be incurred if it is not possible to settle.
However, where there is a chance that a dispute could become litigious, it is also important to ensure that the legal grounds are properly thought out at an early stage, as it would not benefit your case to make unnecessary concessions, or to otherwise damage a potential legal argument by presenting evidence in the wrong way or at the wrong time.
Therefore, if you are involved in a dispute, and are uncertain how to proceed, rather than viewing this time of uncertainty as a bar to progress, this should rather be seen an opportunity to resolve matters between parties, making full use of the alternative tools available such as mediation and negotiation (although perhaps fewer literal round-the-table meetings!). A court ruling is only necessary if parties are unable to resolve matters between them, and the benefit of amicable resolution should not be underestimated, both in terms of the costs and the stress involved.
We would suggest obtaining legal advice at an early stage so that you can consider the options available to you. It could be possible for you to then move forward with your own negotiations, or you might wish to appoint qualified practitioners to advance robust settlement proposals with a view to obtaining the very best outcome for you.
Rachel Waller is a Senior Associate with the Litigation and Dispute Resolution department. If you need advice or assistance on any of the issues mentioned in this article please contact Rachel or another member of our expert Dispute Resolution team on 020 7631 4141 or email litigation@bishopandsewell.co.uk
The above is accurate as at 17 April 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.
