Dispute Resolution

Court

Unless there is agreement to an alternative form of dispute resolution, all disputes that cannot be resolved by consent will tend towards Court. There are 3 “tracks” in the English Court system. The Small Claims track, the Fast Track and the Multi Track. The Civil Procedure Rules determine the conduct of disputes in England and Wales and run to over 4,000 pages of text. We strongly recommend that people do not try and becomes amateur lawyers and bring or defend a claim. It rarely results in a positive outcome.

Small claims involve claims where the amount in dispute is below £10,000. These types of claims are usually less complex and the Court aims to bring these to trial within 6 months. Courts can attempt to settle the claim by mediation, often done over the phone. This service is free of charge. Legal costs are not recoverable against the other party even if you win – which means using lawyers is rarely advisable. At most Spring law will confine itself to the initial formulation or defence of a case.

Fast Track cases are reserved for claims between £10,000-£25,000. The trial is restricted to a day, and usually, it takes up to a year to reach trial after commencement of the proceedings. Unlike a small claim legal costs are recoverable from the other party if you are successful, but these are restricted to Fixed Costs. That means you are extremely unlikely to recover all the legal costs expended in the bringing or defending of the case to trial.

Case are allocated to the Multi-Track where the disputed value exceeds £25,000 or the complexity of the case demands it be treated more significantly. It takes longer to reach trial in multi-track cases. Legal costs are fully recoverable against the other party if you are successful in bringing or defending a claim. BUT – even so, the general rule is that you are unlikely to be awarded more than 75% of your costs.

The extent of Spring Law’s knowledge of the Court system means that we can deploy that expertise to the client’s best advantage. Litigation is a niche discipline and the more you do it the better you become. Our success record in Court marks us out as a serious contender and we have achieved wins for our clients against some of the largest law firms in the country.

ADR

ADR stands for alternative dispute resolution. Generally this means efforts to resolve disputes via arbitration, mediation, early neutral evaluation, and expert determination. Spring Law has experience of resolving disputes by all these measures and we give practical advice to clients as to whether it is in their best interest to pursue ADR.

In the case of arbitration this tends to arise because the parties have elected to arbitrate in a commercial contract between them. There are advantages and disadvantages to arbitrating and effective Risk Control (see Dispute Avoidance) should ensure a reasoned approach is taken before agreeing to an arbitration clause. Arbitration “feels like” a Court process and whilst arbitration was initially conceived as an effective way of controlling legal costs in disputes, there are many who would say it has failed to achieve that aim. It does have the theoretical benefit of arbitrators who know the client industry, weighed against that perceived advantage is their competence in matters of law. Experience of arbitration means that not only can we advise on arbitration cases, but we are also informed as to whether arbitration is the best forum to resolve a client dispute should one arise.

Early neutral evaluation (ENE) is a Court led initiative which we have found can result in positive resolutions. The intervention of a Judge in a non-binding sense of how he/she believes the case will pan out is a powerful motivator to settlement. Since disputes are as much about controlling exposure to legal costs as the result itself, ENE gives clients (and lawyers) and early insight into case prospects. Our experience has taught us that when parties do engage in ENE settlement discussions generally follow which is a positive in almost all situations.

Efforts to mediate are expected during the litigation process. The key to effective mediation is to control costs as it can otherwise layer another significant cost burden into the case. And with no guarantee of success. Without experience in mediation clients will often regret their involvement or feel they inadvertently got led into compromising a strong case or settling or bad terms. Sometimes clients do opt for a contractual mediation clause as an early attempt to settle a growing dispute. This can be of benefit from a commercial perspective and should form part of a pro-active approach to dispute resolution.

Expert determination is sometimes appropriate for niche categories of case where the parties are prepared to submit to an individual with deep industry knowledge to determine the dispute. This is again a choice that ought to arise because of a decision taken during contract negotiations.

ADR is something to be considered in all cases, and often is compelled by contract clauses. Since each form of ADR has different advantages and disadvantages careful consideration at contract stage ought to be given before a commitment to a binding alternative to litigation.