Understanding the dispute process and your case
Going to court sounds frightening and, without the right advice, it can be.
Court proceedings can be unpredictable, both in terms of the outcome and the cost. Before we start, we’ll discuss with you what you can hope to achieve, at what cost and the likely net benefit. If we doubt that it makes economic sense for you to pursue the case, then we’ll tell you.
Information & documentation
We will need you to supply information to help us run your case. Time limits in litigation imposed by the courts mean that it is vital that you do not delay in supplying any information to us. In addition, it is important that you tell us if you think that the information is incomplete or inaccurate in any way.
The court rules concerning anything which might be evidence in the case are strict. All paperwork, records and notes, however damaging to your own case or commercially sensitive to your business, must be kept safely by you or us and made available to your opponent. These include emails, text messages and all computerised records.
This is known as ‘disclosure’ and the only exception is the legal advice you receive from us. The rules of disclosure require you to satisfy the court and sign a certificate that you have conducted a reasonable and proportionate search to locate all documents which could be relevant to the case. There are penalties and sanctions for failing to do so.
Statements
It is likely that you and any witnesses for your case will have to assist us in preparing statements setting out your side of the case. This can be a time consuming task. It is helpful if you can put the facts of your case together in a short document for us at the start of your case. Any statement must be true and you will have to sign a statement of truth to confirm this.
Use of barristers & experts
We may recommend that some of the work on your case is handled by ‘counsel’ (a barrister). If so, we will obtain your agreement first.
"Elizabeth was very, very good in dealing with my case and I could not have been better informed. Promptly responded to. Great service all round."
"Its been refreshing to deal with somebody as professional and efficient as yourself, especially your prompt communication throughout. These seem to be rare attributes these days."
"James dealt with matters very efficiently and empathetically and always answered telephone calls and queries the same day - excellent communication from him."
"Emma Kerry has been excellent in her communication both with myself and the opposing solicitor. I would thoroughly recommend her."
We may also need to have work done by other third parties. These might include expert witnesses to prepare reports and costs draftsmen to prepare costs estimates and the detailed forms of bill required by the court. Normally, we would expect to obtain your prior agreement to instruct such people but an urgent situation might prevent this.
Protocols
The court actively encourages early disclosure of evidence in cases before court proceedings are started, to enable each party to know the evidence the other party has, so as to be able to evaluate effectively the strengths and weaknesses of each side’s case and there are court protocols of desired conduct which promote this.
At Wards Solicitors we actively engage in ensuring that early disclosure of evidence is used.
Expertise
Certain areas of civil litigation have their own professional bodies and their own procedures to ensure best practice. The team are members of a number of these bodies including the Association of Contentious Trust and Probate Solicitors, the Employment Lawyers Association and the Financial Services Lawyers’ Association.
The team is also a member of the Property litigation Association and is well known and experienced in all types of property litigation and mortgage possession work whether acting for lenders or borrowers.
James Taylor is a qualified mediator and has a considerable amount of experience in conducting mediations for other parties. He is registered with the ADR Group, a provider of mediation services, and qualified as a mediator in 2004.
Confidentiality
We must not reveal confidential information about you or your case to other people. However, if someone is helping to fund your case, such as an insurer, we may be obliged to reveal details of your case to them. They may also have the right to inspect your file, perhaps to check our quality standards.
It may also be necessary to allow files to be inspected by accountants or others for audit purposes or to comply with regulatory requirements. If this does occur we will explain this process to you but also ensure compliance with our obligation to maintain the confidentiality of your affairs as much as possible.
Settling your dispute
We will review your case throughout the process and keep in mind all your options, including the formal issue of proceedings, mediation and negotiation. We will always try to settle your case, as far as possible, to prevent you having to go to court.
Alternative Dispute Resolution
The court actively recommends that all parties seek to try to resolve their dispute in other ways than going to court. This is known as ‘alternative dispute resolution’ or ADR.
At Wards Solicitors we assess at every stage of your case whether it is possible to try to resolve your case through ADR.
Mediation
One of the best known forms of ADR is ‘mediation’. This is where the parties jointly instruct an impartial and trained mediator in a flexible process aimed at helping them in trying to resolve their dispute as quickly as possible.
The advantages of mediation are as follows:-
- It is confidential and the parties have control over the process and the outcome.
- I t can be undertaken early on in a dispute therefore keeping costs and time commitments to a minimum.
- It is less expensive than a formal litigation process.
- Business relationships are more effectively maintained than if the parties embark on litigation.
- The types of settlement that can be achieved are more varied than would be available at court and therefore the process is more flexible and can be tailored to the needs of the parties.
Negotiation
If mediation is not suitable for your case, we will attempt to negotiate a settlement by making confidential proposals to settle, known as ‘without prejudice offers’. The courts have a whole raft of procedures available to assist the parties in making such offers and we are experienced in using these and will seek to do so at the earliest opportunity.
Funding your dispute
For many, the prospect of funding a litigation bill can make the difference between a decision to proceed or not. We can help you to understand all of your options in our first meeting. Although no substitute for a face-to-face meeting, this flyer gives some basic information on how you might fund your dispute.
Cost estimates
It is always going to be difficult to estimate accurately the cost of litigation. There are a number of risks and uncertainties such as whether your claim can be settled early, how keen the other side is to fight and whether expert evidence will be needed. We will update you on an on-going basis as to likely costs so that you always know what is going on.
Funding options
Clients are nearly always expected to meet their own legal costs and expenses. However there are a number of funding options that might be applicable to you:
Legal Aid
Public funding (formerly known as Legal Aid) is now only available in a very few areas of law. We can advise if we think your case falls into one of those categories where you can obtain legal aid.
Third Party Funding
Please tell us if funding from third parties such as Trade Unions, family or employers may be available to you.
Insurance
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Before the event insurance
This is an insurance that can be taken out (usually with an annual premium) to insure you against possible future legal problems. This is often an ‘add on’ to your home, contents or car insurance policies. Things to consider are that these are often very limited in what they cover, may include restrictions on your choice of lawyer and may not provide full cover for our hourly rates and other charges. There are also often strict time limits imposed on the length of time between the incident occurring and the date it is reported to them. We will be happy to look over your policy to review this option for you.
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After the event insurance
It is possible to take out insurance to cover costs on a claim that has already occurred. You will still be liable to pay your own solicitor’s costs and disbursements but if you lose then the insurer will pay the other party’s legal costs, up to the limit you have insured.
The down-side to insurance of any kind is paying the premium. Insurers will often agree to defer payment until the end of the case.
In some cases it may be possible to obtain insurance to cover both your own and the other sides costs but this is much more expensive and also more difficult to obtain.
‘No win, no fee’
- A Conditional fee agreement also known as ‘no-win-no-fee’ agreement is where we do not charge for our time, if the case is lost but you have to pay your disbursements (eg. court fees) If you win, your opponent may be ordered to pay your costs, but you will have to pay a success fee (a top up on our legal bill) to us youself, which is normally deducted from your compensation.
Discounted conditional fee agreement
This is where we agree an hourly rate if the case is won, but the rate is reduced if the case is lost. This might also incorporate a success fee.
Damages based agreements
These are agreements whereby generally you agree to pay a certain percentage of your compensation to your lawyer as payment for the work done. We will discuss whether a DBA is appropriate for you at our first meeting.
Paying privately
Unless one of the funding arrangements mentioned here is agreed between us, we will need you to sign our normal terms and conditions of business, which set out our charges on an hourly rate basis. We will also require upfront payments for our costs. We’ll normally bill you on a monthly basis and we’ll aim to send you a costs estimate each month too. Payment of our costs on a monthly basis spreads the cost to you and payment by credit card can help you manage payment of your legal bills owed to us.
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