What is litigation?

Litigation is the legal process whereby a dispute is resolved, either by negotiation or, where negotiations fail, by a court. Usually, one party is seeking compensation (known as “damages”) from the other party, or they require that a specific action be taken (or not taken) by the other party.

Whether a matter goes to court depends on the case’s circumstances. Once court proceedings have commenced, it is still possible for a settlement to be reached with the other party. However, if the disputing parties cannot reach a settlement, they will be required to attend a court hearing.

Litigation is used as a last resort to resolve a conflict between parties (personal or business-related). It is used when the parties involved are unable to reach a resolution between themselves, in which case they have the right to approach a court of law to ask them to determine a resolution. A dispute is a civil matter between two opposing parties as opposed to a criminal matter, which is the state versus an individual. A civil case is determined “on the balance of probabilities,” which means that the successful party simply needs to persuade a court that the likelihood of their evidence being true is at least 51%. In a criminal case, a magistrate (or a judge and jury) must be convinced “beyond reasonable doubt”, which means that the prosecution must prove their case conclusively.

What cases can be resolved using litigation?

Civil Disputes can cover a range of issues, including (but not limited to):

Matrimonial disputes
Defamation
Personal Injury or Accidents at Work claims
Negligence
Employment disputes

Commercial litigation is used to cover disputes where a company or a business is involved. Typically, commercial disputes are more complex, costly, and lengthy to resolve.

Examples of a commercial litigation claim include (but are not limited to):

Contract breaches
Director / Shareholder disputes
Disputed partnership agreements

What are the stages of taking a case to court?

Civil litigation cases follow a process with the following stages:

preliminary investigations, looking at alternative dispute resolution and following pre-action protocols
filing the claim, preparing the case, claim and counter-claim, document disclosure, witness statements, expert reports
trial preparation, going to trial, enforcement of a judgement, an appeal which may sometimes be followed by a further appeal

What is alternative dispute resolution?

Alternative dispute resolution (ADR) is the umbrella term used to describe the varied ways parties may aim to resolve a dispute without taking the claim to court and having a judge determine the outcome. While courts cannot always force parties to use ADR, they can take a dim view of parties they feel have unreasonably refused to mediate. They have the power to impose sanctions such as preventing them from recovering some or even all of their legal costs.

The most common forms of ADR include both formal and informal methods, examples of which are:

Informal discussions, where parties agree to meet “without prejudice” (off the record) to see if they can reach a mutual compromise. During these negotiations, the parties may involve their legal representatives, such as an expert dispute resolution solicitor, to try to reach a settlement on which both parties agree, without involving the courts to achieve a result.
A more formal route, and one of the most common forms of ADR, is mediation, whereby disputing parties agree to appoint an independent third-party mediator. Mediators are impartial people appointed to assist the negotiation process. Mediators do not decide who is right or wrong; it is their job to facilitate a settlement agreement by helping the parties find their own solution instead of imposing one on them.
In cases where the dispute is more technical – and this is more common in commercial disputes – the parties may agree to appoint an independent expert in the relevant field to decide who is right and wrong and allow the expert to make a binding ruling.
Arbitration is another formal procedure where parties agree to instruct an arbitrator to determine the outcome of the dispute and make a binding ruling at an arbitration hearing. The Arbitration Act 1996 provides a set of default rules that will apply unless the parties agree to independent rules set by the Arbitrator.

What is the difference between alternative dispute resolution and litigation?

The main difference between litigation and ADR is that litigation is the process of issuing proceedings in the High Court or County Court, with a view to the case eventually reaching a final hearing (“trial”) and a judge deciding whether the claimant succeeds in their claim or not. On the other hand, ADR methods do not use the courts, and the parties can come to an agreement themselves. If dispute resolution fails, the next and final possible solution is litigation.

Litigation can have more cost risks associated with it. Along with one’s own legal fees and court costs, if one loses one’s case, one may be liable to pay one’s opponent’s legal costs (except in some instances such as family law). However, if ADR is unsuitable in certain circumstances, litigation can provide a more definite and legally binding outcome, especially if the other party is uncooperative or disruptive during the negotiation process or is unlikely to respect the decision of a mediator or an arbitrator. A court can take stronger enforcement action if a defendant fails to comply with a court judgment.

When should litigation be used?

As mentioned previously, litigation can often be more expensive than dispute resolution; however, it is highly effective in many cases. A court can provide clarification, including an order that something should or should not be done. It may include the payment of compensation by one party to the other, and it can produce a judgment about who is right or wrong. So, litigation, although expensive, can be highly beneficial when resolving a dispute.

Whatever the issue, a party should always weigh the potential costs of the process against the likelihood of achieving a positive outcome. Claimants also need to be aware of the various limitation periods (time limits) connected to different types of claims. Therefore, seeking expert legal advice early on is essential to ensure that dates are not missed and a claim statute barred. All associated risks, plus the alternative resolution methods, will be explored.

Litigation Solicitors in Blackheath

At Beverley Morris & Co., based in Blackheath, South East London, we have an excellent litigation and dispute resolution team handling simple and complex civil cases, including commercial disputes. Although we specialise in Alternative Dispute Resolution, High Court and County Court actions, we will happily speak to you to find out exactly what your intentions are, including your ideal outcome, to ensure that we help you in the best way we can.