Don’t dabble in litigation

Instructing solicitors is an expensive business and is not a panacea to all legal problems or a a guarantee of a successful outcome.

Whilst we would not advocate a “diy” approach to any legal matter, there are some areas, particularly with the fantastic free legal resources on the internet now, where a lay person can get a pretty good handle on legal issues and matters to be aware of. Good examples of this are issues such as what to look out for in a commercial lease, or things to bear in mind before entering into a partnership agreement, shareholders agreement or other kind of business contract.

In our view, notwithstanding the inherent problem of the no-cost rule for small claims cases under £5,000.00 (whereby win, lose or draw, the general rule is that neither party is awarded costs), the one area of law fraught with danger in going it alone is litigation. there are complex general rules of procedure contained in the Civil procedure Rules (CPR) running to hundreds of pages with variations relating to specified types of cases. Making a mistake with procedure, let alone not getting the law right, can be fatal and/or expensive to a case and even though there is an established “overriding objective” in the rules designed to make both parties equal, some Judges are more prepared to apply this objective than others.

We then move onto the law. This of course varies from case to case but to succeed with a litigation case, not only does the evidence need to be in favour of the winning party, but the law also needs to be, and this can vary from application of case law precedents (common law) through to technical statute law. Experience and research skills count in this regard and Judges can be very intolerant of any party attending court without being fully prepared. Expect an opponent to be ready.

Finally, and perhaps most crucial of all, is the issue of litigation tactics. What does winning mean ? What happens if an opponent makes a tactical offer which you reject and the court has knowledge of this ? You could find yourself winning on the law, but paying your opponent’s costs, which may outweigh your damages. What type of documents might your opponent have which will help your case ? You may need to go to court to get an order that the opponent discloses such documents. And what about enforcing any judgment you may obtain ? It is one thing reaching a settlement or getting a judgment, but another thing getting your money from the opponent. The court will not help you just because you have won, and you could end up wasting even more money if you choose the wrong enforcement method.

In short, there are more hurdles with any litigation matter than in almost any other area of the law. Don’t forget also to choose the right lawyer

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