Advice: Should I sue or should I talk?
Anis Waiz, head of commercial litigation at CLS, says that whilst a day in court may feel like what you deserve, sometimes it can be better to simply talk matters through.To some potential clients, I have some rather upsetting and shocking news.
As a solicitor specialising in commercial litigation and some other rather obscure areas of law, when I’m asked to advise on issuing proceedings, my first response is 'do you really need to?'This tends to baffle my clients. A litigator asking why we want to issue proceedings? What has the world come to!
Let me explain. Yes, some clients are determined to have their day in court, but that is until I explain that very often civil proceedings are the last thing certain clients need. Blank looks.Proceedings can be costly, very time-consuming and to a certain extent unpredictable; the court may not even accept the client’s evidence. Is that really what the client wants?
To many business clients the idea of not issuing proceedings (except in urgent matters where money/assets have been taken) is much more understandable. To the average person who for example is owed money by another person, my answer at first seems very odd. But there is an alternative I say. More blank looks. Why not offer to meet the other party to see if we can settle the dispute on a wp basis? Clients tend to love the serious legal words ‘without prejudice’, but alas, not many lawyers understand how the rule operates.If the client can settle a potential dispute without the need for proceedings, it’ll save time, money on court fees and even expert fees and lawyers. Yet some still want their day in court despite my advice!
Let’s put this into a business context. In 2008 CEDR (Centre for Effective Dispute Resolution) found that business disputes cost businesses £33bn a year. 80% of these disputes have significant impact on the running of businesses. The cost of business disputes comprises not only the amounts paid in legal fees but also the damage incurred by a business as a consequence of those disputes; the costs of this damage (£27bn), far outweighs the legal fees (£6bn).Of course settling civil disputes without the need for proceedings is nothing new. Mediation has been a key part of the English legal system for a number of years and proved very successful. CEDR noted in their Fifth Mediation Audit 2012 that mediation achieved a high level of success. Just over 70% of their cases settle on the day, with another 20% settling shortly thereafter with an aggregate settlement rate of around 90%. (Source: www.cedr.com/docslib/TheMediatorAudit2012.pdf)
Even parties in civil proceedings must consider mediation, as a failure to engage can have serious costs consequences. So you see, a commercial litigator telling you not to issue proceedings is not that odd, just sound advice from lawyers you can trust!
Head of commercial litigation