Dispute resolution departments of law firms across the country are kept busy by a variety of cases ranging from simple debt claims to consumer issues with products or services, or from neighbour disputes to contested probate claims.
Each case involves its own set of unique circumstances where two or more parties have had a difference of opinion and clashed on how to resolve things. Her Majesty’s Courts are bustling with litigants bringing or defending claims, all hoping to have their day in court. But not every case in court should actually be in court, and many cases not in court should really be resolved by a judge sooner rather than later. Making the right decision about whether to start the court process is crucial. A solicitor can advise on the merits of a case and your legal position, but the final decision is always the client’s.
So, when should you sue and when should you stay out of court? This is the question that Trainee Solicitor John Mousicos answers below. At the very least he provides some guidelines and pointers on the factors to consider when considering whether to bring a claim to court.
It is very unlikely that you would get legal aid for your civil claim. You should therefore be prepared to pay out and civil claims can be costly. If your case goes to court, you’ll need to be prepared to pay out a few thousand pounds at the very least. However, it may be that you have legal expenses insurance cover (known as ‘before the event’ insurance) which could be included in your motor or home insurance policy, so it is worth checking your policy documents. If your claim is a personal injury or medical negligence claim, many firms offer ‘no win, no fee’ arrangements and this is something you should ask your solicitor about.
The general rule in court proceedings is that the loser pays the winner’s legal costs. However, the court tends to decide what amount the loser should pay and it is rarely all of the legal costs incurred by the winner. And of course, this assumes you are going to win, which is never a certainty and you should be cautious of any solicitor who promises you success. Therefore, before you make a claim, it is a very good idea to make a common-sense judgement and ask yourself, is the amount you are claiming for worth the risk? If not then it may be sensible to explore other ways of resolving your matter or, as much as you may not wish to, you may decide that it is best to walk away and put it down to experience.
Litigation takes time, sometimes lots of time. You will need to liaise with your solicitor, find documents, make statements, deal with barristers, read letters and emails, attend court hearings, and lots more, and not everyone has the time to do this or to do it thoroughly. It is therefore a good idea to consider whether you want to be spending your time dealing with such matters. Again, a common-sense approach is advised to weigh this up against what you stand to win (or lose).
Another point about time: limitation
You should also be conscious that there are statutory limitations applicable to different types of claims so that you would need to bring your claim to court before you run out of time. Different types of claims have different limitation periods so you should check with your solicitor as soon as you can in case it is already too late.
Litigation is stressful. Every time you receive a letter from your solicitor telling you that the other side disagrees with your position, this is likely to antagonise you even slightly. We all deal with stress in different ways but for most people, legal proceedings can be an unpleasant arena to be in. Again, if you can find another way to resolve your differences with the other party, a way that will bring you an acceptable solution, I would recommend exploring that other way first. That said, sometimes litigation is all that is left so it’s important to weigh up the pro’s and con’s.
Your Opponent’s Financial Position
This is a consideration that is often overlooked by the keen litigant. We can get tied up in our emotions and focus on wanting our day in court. However, whether your opponent has any money can be the difference between deciding to make a claim or not. If your opponent is broke and has no assets, it follows that you are going to struggle to get paid and you could end up with a huge legal bill of which you will have to pay the entirety. This is another of those common-sense considerations not to be ignored. “You can’t get blood out of a stone” is the saying that springs to mind.
Other ways of resolving the dispute
A recurring theme throughout this guide is that it is always a good idea to consider alternative ways of resolving a legal dispute. In any event, a court would expect you to consider alternative dispute resolution before making a claim. Mediation is available to most people and could be a far less costly way to reach an agreement with your counterpart. You could even think about involving a third-party known to both of you who may be able to mediate informally. If you think you can talk to the other party in a way that de-escalates and appeals to their better nature, and you are both prepared to compromise, try this first.
If you reach the unfortunate position of having considered all other options and decide that litigation is the best or only way forward, then choose a good solicitor and get the job done properly and professionally. Remember that you normally get one chance to get this right so give yourself the best chance of success.
Our dispute resolution service covers the full range of issues in both consumer and commercial matters so if you want to speak to someone at Wollens, North, South, East or West, wherever you are, we’ve got you covered. Contact us today for an informal chat, without obligation.
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