What are the key facts that you need to know should you find your business faced with a potential dispute?
This applies to any dispute or incident, whether started by you or brought against you (for example, a dispute with a trading partner or a prosecution by a regulatory body).
It is very important to understand what your business is getting involved in. It is almost always better to find a commercial solution to a dispute. Your business should consider:
Your business should not consider it a sign of weakness to approach the other side to explore the chances of a settlement. This can be done at any time during the litigation process, even during a trial. Settlement negotiations facilitated by a neutral third party (known as mediation) are increasingly popular and encouraged by the Court. Parties can be penalised in Courts for failing to mediate.
Always take legal advice first to ensure the settlement discussions are conducted on a “without prejudice basis”. This means that anything said about the dispute during the settlement negotiations or in any written settlement offer cannot usually be used later at the trial. This protection only applies to statements made purely in an attempt to settle the case.
Consider who should handle any negotiations. It is generally advisable to appoint one person with overall responsibility and who has authority to make decisions.
Your business may have to implement improvements or changes in practices following an incident, implicitly showing your previous practice was flawed. Take legal advice to find the best way to do this without prejudicing any possible litigation.
Communications between your business and your legal advisers do not usually have to be shown to the other side or regulatory body. They are protected by the legal concept of ‘privilege’ and the lawyer’s general duty of client confidentiality.
Some communications are not protected. For example, you should take legal advice before marking documents “privileged” or “confidential”. Using these terms on a document or copying it to a lawyer does not, in itself, make it privileged or confidential.
Privilege and confidentiality can be lost if the privileged or confidential information is distributed or copied too widely. Only circulate it on a real “need to know” basis and never copy it externally without taking legal advice beforehand.
Check your business’s insurance policy to see if it is an insured claim. If it may be, notify your insurers immediately and follow their claims procedure, otherwise, you could invalidate the insurance claim. Your business may need to seek the insurance company’s consent before you take any action.
Evidence. Locate and preserve any relevant materials as soon as possible.
Witnesses. Identify anyone who may be relevant to the case and, therefore, may have to give evidence. Are they still employed by your business, if not, can they be traced? Tell your legal advisers immediately if there is any reason they might not be able or willing to give a statement (for example, if they were dismissed or are ill).
Other parties. Tell your legal advisers if there is any other party who may be liable or should be involved in the case (for example, had you sub-contracted the disputed work?).
Assets. Inform your legal advisers if you think the other party may dispose of its assets so that it cannot pay if you win. You may be able to obtain a court order to secure costs that may be payable to you by the other party if your claim is successful. Also consider where the other party’s assets are located.
Management time. Keep a record of management time taken by the case.
Case review. Review how the case is going on a regular basis. Consult all areas of your business on which the dispute is likely to have an impact.
Budgeting. Costs budgeting needs to be discussed with your legal advisers at the outset of the case and reviewed regularly.
Our specialist commercial litigation lawyers have many years of experience and can review the remedies available and help you to resolve your dispute. If you have any questions about the content of this checklist or would like to discuss your situation, please contact Head of Disputes Peter Kelly or Fiona Hewitt, Senior Associate and Head of Employment and Commercial Disputes. Call 0330 0945 500 or email firstname.lastname@example.org