Dispute Resolution and Litigation

In disputes and litigation the primary challenge is to quickly identify the legal and commercial issues in order to work towards the desired results from the outset. Attempted negotiation and alternate dispute resolution are usually suitable initial options. In any dispute a party should be ready to provide the attention and funding needed to properly manage the issue and any unavoidable litigation.

Alternative dispute resolution

Usually conflicting parties' interest will be better served in terms of money, time, uncertainty and stress if they are able to avoid Court action by reaching a negotiated resolution. This may be arranged fairly informally between the parties by exchange of letters setting out the parties' requirements and main objections and by holding without prejudice conference between the parties.

Some agreements such as construction and insurance contracts require a particular or initial method for dispute resolution such as arbitration. Wherever a compromise is reached between the parties, with or without Court litigation, it is essential that the parties record their settlement and that it comprehensively incorporates all relevant issues between the parties.

What to expect in litigation

Between the interests of the Courts, the parties' and stakeholders such as witnesses and Counsel, schedules and steps in litigation can be difficult to control and predict.

In general, after demands, advice and any negotiation have played out between the parties without a final resolution of the dispute, a Court proceeding will be issued. Usually to commence a Court proceeding a Statement of Claim will be filed and served by one party (now the plaintiff) on another (the defendant).

The Statement of Claim sets out details of the dispute and the remedy sought by the plaintiff. Defendants usually have between 10 and 21 days to respond by preparing an Appearance and/or Defence and to provide details of their defence and consider whether to make any Counterclaim. It is essential that defendants consider and get advice on any Statement of Claim as soon as it is received, particularly in order to avoid judgment in default.

After a Defence is filed, usually the Court will require the parties to attend a Directions Hearing or the parties will be obliged to perform pre-trial steps which help to clarify the parties' respective arguments and explore the possibility of settlement. Of the following, Discovery, Mediation and Further and Better Particulars are quite common early pre-trial steps, the other steps less so:

• Discovery usually involves the parties preparing and exchanging an Affidavit of Documents containing documents relevant to the proceeding and then either inspection or swapping copies of the documents between the parties' solicitors.
• Mediation or Pre-Hearing Conference is usually ordered by Courts before a date is set for trial, requiring the parties and their solicitors to meet face to face before an independent accredited lawyer or an officer of the Court.
• Further and Better Particulars may be requested by a party and ordered by the Court for clarifying issues in the other party's Statement of Claim or Defence.
• Interrogatories are written questions put by a party to obtain more details from the other party about the questions in the proceeding, which evidence may be relied upon by the parties at trial.
• The Court may require the parties to obtain expert evidence before trial in order to clarify complex issues in dispute, or alternatively the parties may tender expert reports across a range of topics, and examine expert witnesses, at trial.
• Parties and non-parties may be served with a subpoena or summons requiring them to attend and give evidence at a trial or to provide specified documents to the Court before a hearing. Witnesses will be required to attend if they receive at least minimum notice and money for expenses when served with a summons.

The vast majority of matters are resolved or settle before trial and parties can often request that the Court makes orders by consent. Litigation can last several months or several years and generally simpler matters for smaller amounts may be run more quickly and efficiently.

If a matter does make it to the Hearing stage it is typically heard by a Judge alone. Usually barristers are briefed to prepare for, and represent the parties at, trial. Generally the unsuccessful party may be ordered to pay the successful party's costs of the whole proceeding. Although an unsuccessful party can sometimes seek permission to appeal an outcome, the original decision will commonly be upheld.

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