Why do I need to try to settle my litigation claim? Won't I look weak?

Showing a willingness to settle doesn't make you look weak. It's all about how it is approached, which is the skill of the litigator (your solicitor).  

The Court encourages parties to attempt to settle.  It is even able to pause a claim to require the parties to try mediation (a formal process, using an independent third party who tries to broker a deal while each party sits separately with their legal team).  If a claim doesn't settle, the Court has the power to punish a party who failed to take active steps to attempt settlement by denying them their costs or ordering them to pay at least some of the other party's costs.

Regardless of the Court's powers, it is always sensible to try to settle.  Done right, offering to settle (or attempt to) won't make you look weak.  The benefits of settling are numerous: 

• the outcome is certain; 
• you don't have to give evidence at a trial; 
• you save significant costs; 
• you maximise a recovery or shorten a period during which you're suffering further loss (in a money claim); 
• you shorten the period you are suffering nuisance, loss of a right or other infringement you want to stop;
• you achieve a realistic objective, rather than losing everything (because there will only be one 'winner' and one 'loser');
• you can achieve an outcome the Court cannot order - e.g. land transfers which the Court has no power to order;
• you can have a confidentiality clause in the settlement, so nothing becomes public (outcomes at trial are a matter of public record, so parties are allowed to tell other people what happened).

All correspondence relating to settlement should be marked 'without prejudice'.  That correspondence doesn't get seen by the Court during the trial, so the Court will not know what attempts have been made to settle until it comes time to deal with costs.  At that stage correspondence that has been marked 'without prejudice save as to costs' can be shown to the Court to assist the decision on who pays the costs.

The term 'without prejudice' is used so that it is clear that the contents of the letter discuss settlement and shouldn't be taken as an alteration to your position in the claim.  In this correspondence parties may make admissions or concessions, or agree, for the purposes of settlement, that they owe money.  Without prejudice correspondence does not undermine your position in the claim, so you can still robustly argue your position to the Court (as long as you aren't misleading it).  

You may also make concessions at a mediation, as the entire meeting is treated as 'without prejudice', so the Court will not know what happened there (subject to some rights to disclose limited information to the Court in certain circumstances).

Settling doesn't have to mean selling yourself short; it should be a commercially sound decision.  Your lawyer should be skilled enough to negotiate assertively and to advise you on the reasonableness of an offer (and any counteroffer).  They should also be able to give a view as to whether they think you should accept (or make) an offer, based on the prospects of success or likely outcome.

I've heard there's a clause I can add to my business terms that lets me recover all of my costs if I have to sue someone who doesn't pay. Can I add that?

I expect that what you mean is an 'indemnity' clause.  If your contract contains one, your customer agrees to pay all of your expenses in the event of non-payment or dispute.  This includes legal fees (though you may have a harder battle to convince a court that it was reasonable to instruct a lawyer to handle a small claim - one under £10,000 - and so recover legal fees).  

In October 2023 the Courts extended fixed recoverable costs (FRC - the amount of costs that the 'losing' party would have to pay to the 'winning' party at the end of a civil money claim) to apply to claims up to £100,000.  

The FRC are pretty realistic and would allow most lawyers with reasonable hourly rates to adequately represent their client in a straightforward claim without exceeding the limits.  There will always be firms, though, whose hourly rates, or approach to litigation, may cause costs to overrun those levels, even in the most straightforward claims.  

In less straightforward claims you may have to 'cut your cloth' to keep costs lower, or choose to pay for the privilege of a rolls royce service as the FRC do not leave much room for 'excess'.  It is possible that if you wish to bring a money claim for less than £100,000 you would have to pay to your lawyer a significant surplus in fees that aren't recoverable from the opponent.  That would eat into the money you are seeking to recover.

The wording of the FRC rules allows parties to 'opt out' of the regime.  This seems to make sense if you know you will win (so you could try to recover more), but as you don't know how the relationship with each particular client is going to end, you cannot predict whether or not it is the right decision at the outset.  You may find that by choosing to opt out you could be opening yourself up to a big bill for the customer's costs if you lose a case.  

I wouldn't suggest you pick and choose which customers you ask to 'opt out', so you will likely need to decide whether or not to include an opt out clause in your terms and conditions and use them consistently. 

Some factors to consider when deciding:

• what sorts of disputes have you been involved in?  Were they complex and technical (so take some time for lawyers to get to grips with)?  If so, you may not be able to fit your costs within the FRC.
• what is your success rate in claims?  If you have been defeated before, particularly on the basis of your terms not being adequate, you may wish to consider more globally your terms and conditions first.  If your terms are sound, you stand a better chance of succeeding in a straightforward non-payment claim.
• what is your risk profile?  If you don't like the risk of higher costs bills, you might prefer to stick to the costs rules and not opt out.

The intention of the wording in the rules provides that parties can "each agree" that they wish to opt out of the FRC (by saying that the particular rule won't apply to any claim between them).  This means that you cannot agree in isolation; your contract should include a specific term stating that your indemnity clause will apply and the FRC will not (whether that is at the outset of your relationship or later, as it hasn't been clarified if an 'opt out' must be made at initial contract stage or if it can be made later).

It hasn't been tested, though, whether a contract could be agreed that allows for only one party's costs to be opted out.  My view is that it is unlikely this would be allowed and any clause attempting only to opt out one party and not the other would likely be held to be an unfair contract term.  

I think this would especially be the case if the party who has opted out is a business, against a consumer, so that the business only has to pay FRC if the customer wins but the customer has to pay more if the business wins.  That would depend on the bargaining power of the parties to the contract at the time it was entered, though - two businesses entering a contract would usually be considered sophisticated enough (and able to take legal advice) to negotiate terms when contracting.

There doesn't seem to be a right answer to opting in or out at the moment.  Hopefully it will become more certain how the courts will deal with opt out once some cases have been reported in this area.

If you want to discuss potential amendments to your business terms, or need a view on your costs exposure in an existing claim, get in touch.

What we can learn about settlement offers from Hugh Grant and News Group Newspapers?

HRH Prince Harry appears determined to fight News Group Newspapers to trial.  A few months ago, Hugh Grant bowed out of his own concurrent claim, quoted as saying that he couldn't risk potentially becoming liable for c£10m of the newspaper's costs as well as his own if he rejected an offer made under the rules used by the civil courts in England and Wales known as a Part 36 offer.

This was an oversimplification of the rules.  I suspect it was lost in translation when being reported, because it doesn't state when the offer was made or accepted or what NGN's overall costs were predicted to be.  

NGN appears to have lost the appetite for fighting, as recently it was reported that 39 of the litigants in the hacking scandal have accepted offers, presumably made under Part 36.

So what is a Part 36 offer?  And why did these litigants, including Grant, decide to throw in the towel?

A Part 36 offer is a special kind of offer made to an opponent in litigation.  Provided it is made in the correct way, with the prescribed wording, it gives protection on costs to the person making it if they win the case at trial.  

The offer can be made at any time, but the costs protection only applies to the costs incurred after it is made.  The Court can still make whatever order it wishes in relation to the costs incurred before the offer is made.

What happens if a claimant makes an offer to the defendant?

If a claimant (the person who brings the claim) makes an offer, and it is accepted by another party (usually the defendant) within 21 days, the accepting party must pay the claimant's costs to the point the offer is accepted.  

If the amount of costs to be paid cannot be agreed, the Court will decide how much must be paid.  If there is any doubt as to whether or not a particular item on the bill should be paid, the Court will remove it from the bill.

If the defendant rejects the offer, the rules provide that if the outcome is 'at least as advantageous' as the terms of the offer (i.e. equal to), the defendant must pay the claimant's costs from the date 21 days after the offer was made.  However, when the Court assesses the costs any item on the bill in doubt will be paid by the rejecting party. 

The defendant also must pay interest both on any sum they are ordered to pay to the claimant, and on costs, from the date the offer could be accepted.  The current rate of interest is up to 10% above base rate.

Lastly, the defendant must pay an additional 10% of the sum payable to the claimant (for the first £500,000, than 5%, up to an overall maximum of £75,000).

While the Court does retain some discretion about whether or not to award these additional sums, in my experience it takes something significant to make it depart from the rules.

*It should be noted that the rules are slightly different for cases which fall within the Court's Fixed Recoverable Costs regime (money claims between £10,000-£100,000)*

Can a defendant make an offer?

A defendant can also make a Part 36 offer.  In making the offer, the defendant is also offering to pay the claimant's costs up to the point of acceptance, provided the offer is accepted within 21 days.  If the defendant's offer is rejected, and the claimant fails to beat the offer, the claimant must pay the defendant's costs from the time the offer could have been accepted.  

Should I make an offer?

Due to the serious consequences that flow from rejection of a reasonable offer, it is usually a brave litigant who rejects a Part 36 offer and doggedly pursues a claim to trial (and usually also against solicitors advice).  For this reason, when used correctly, Part 36 offers can be a strategic tool to ensure early settlement.  If settlement appears unlikely, a Part 36 offer is the best protection on costs that can be put in place.  

There is a good deal of merit in making a Part 36 offer early on, as the costs protection (and risk to the opponent in rejecting the offer) begins as early as possible.  That isn't to say that a later offer is not worth making.  

Where you are a defendant so that in making the offer, you are agreeing to pay the claimant's costs to date, it is still very often worth making.  This is because if the claimant 'wins' the case in any sense (e.g. is awarded £1 in damages), the ordinary rule is that you would pay the claimant's costs of the claim.  

An early competitive offer, if accepted, will eliminate your exposure to future costs (both your own and your opponent's).  If the offer is made tactically, at a level the claimant is unlikely to defeat, it will either focus the claimant's mind on settlement, or protect you if the claimant fails to beat your offer at trial (because in that case the claimant would normally be ordered to pay your costs from 21 days after the offer was made to trial). This appears to be what NGN did here (though possibly later than would sensibly be advised).

So what was Hugh Grant so worried about?

It isn't clear at what stage the offer was made, as the story might have been written some time after the settlement was tied up.  It isn't immediately clear why his concern appeared to relate to the entirety of NGN's costs.  If he rejected the offer as claimant at a late stage, and didn't beat the offer, he still would have been entitled to seek his own costs to the date of rejecting the offer from NGN.  He would only have become liable for NGN's costs from the time he rejected the offer.  

I have no doubt that he was accurately advised, and the story was lost in translation, or 'spun' to explain why he bowed out.  There is likely also to be an element of him wanting to maximise return for the charity he donated the damages to, rather than gambling on that gift.  

Ordinarily, the opponent's costs aren't likely to reach seven figures, so the sums are less eye-watering.  There remains, though, a risk when dealing with Part 36 and so this type of offer really should be taken very seriously.  

If you would like to discuss any aspect of Part 36 further, please get in touch

How do I know my litigation solicitor is doing a good job for me? Should I not just use a barrister for more clout?

It's tempting to see litigation as a war.  It's long been dubbed an old boy's club of adversaries 'duking it out' while wearing robes and wigs.  

More broadminded modern lawyers have learned to be chameleons: empathetic and gentle with their clients and more robust, forthright and sometimes strident with the opponent's legal team.  The Courts are pushing for collaboration between litigants, but what does a client who perceives themself as 'wronged' want?

I hear the phrase "it's the principle that matters" a lot from clients.  Whilst I completely empathise with a 'wronged' client and want to argue for the solution they'd like, sometimes expectations must be managed so that we act within the restrictions of our regulator and also show the Court that the client is reasonable and wants their case to be dealt with justly (which is the Court's core value).  Nobody wants a pyrrhic victory. 

That's not to say there isn't room for clever tactics and powerful language when dealing with the opponent's legal team though.  I just won't waste time (or costs) scoring points for the sake of it.

As a basic rule, you, as a client, probably don't want to end up in a worse position than when you first instructed your lawyer.  Aggressive tactics might be required when dealing with certain situations and the other party has a lawyer.  However, deploying obstructive or inflammatory conduct, or being too strident in approaching an unrepresented party, can not only stand in the way of a potential resolution but can also irritate the Court and impact the outcome, especially the important matter of who pays the costs.  

Many litigants have been punished by the Court for their aggressively hostile approach, either by being forced to pay their opponent's costs or depriving them of any payment from their opponent towards their own.  So, as much as you'd like me to terrify your opponent with threats and bamboozle them with legal phrases I really must tread more carefully if they don't have a lawyer.

So does that mean you should be friends with the opponent and compromise, to avoid being criticised by the Court? 

No.  I'd go so far as to say that a lawyer dealing with litigation too 'softly' or without a carefully considered strategy could actually be negligent.  My job is to put forward your case or position and to represent you to the best of my ability.  I'll advise you when to take a point and when to let it go.  If it needs reinforcing, I'll go for it.  If we should back down, I'll tell you.

It should go without saying that anyone working in litigation should be competent.  There is close regulation of litigation work to ensure this remains the case.  Legislation makes 'litigation services' an activity which can only be carried out by firms and individuals specifically authorised to do so.  This is likely only to be solicitors (or more junior lawyers under supervision) in a law firm.  

[There are also certain barristers who can take on litigation work directly from clients under the 'direct access' scheme, but as I explain below, my view is that that scheme really only lends itself to representation at hearings at the last minute.]  

There are compensation schemes to protect clients if solicitors get things wrong.  Clients are also perfectly free to change solicitors or to sue them if it isn't working or they have messed up and caused the client loss.  

A client may choose to seek a second opinion from another solicitor if they think their existing lawyer has made a mistake or their approach doesn't seem right.  If something has gone very wrong, it may be possible for the client to sue the lawyer for negligence.

So what does representing a client's best interests look like?

A litigator should:

• give accurate advice to their client - sometimes advice can change during a claim based on new evidence, new cases / law changes or events leading to trial, but should always be the best possible advice based on the facts as they exist;
• follow their client's instructions - unless to do so would mislead the Court or put themselves in a conflict situation (e.g. if they act or acted for the opponent or the client was telling them to do something dishonest).  If that means the client instructs the solicitor not to settle, and the client has been advised of the consequences of not trying (e.g. possibility of not being able to recover their costs, or having to pay the opponent's costs, maybe even an additional penalty if they refuse a 'protected offer' that has special consequences) that means not settling [and bullishly defending the client's right to refuse settlement (though I'd want to thoroughly question why a client was so doggedly determined to take a case to trial before agreeing this strategy)];
• accurately put forward the client's position both to the opponent(s) and to the Court.  This is ensured by the Court requiring a 'statement of truth' to be signed by a party (or their advisor) on each significant court document, stating that the contents are true - any party signing one that isn't true could be held in contempt of Court;
• only put forward a case, argument or position that is at least arguable (having first advised their client as to the likely success, or otherwise, of the case or argument). 

Some litigators can be cautious and will only accept cases from clients where the prospects of success are high, to avoid having a 'loss' on their CV, or any risk of complaints if things go wrong.  Others are more willing to 'fight for an underdog' who has a novel or niche point or principle to argue (that may also assist others in the future) and stands at least a reasonable chance of success.  

I'll tell you if I think you could win (or lose), how likely that is, and what your exposure is on costs (i.e. can you claim any of yours from the opponent and / or will you have to pay any to the opponent).  I don't 'cherry pick' cases based on whether or not they stand a good chance of winning, or will gain publicity.  

To act in a client's best interests also includes putting the right team in place.  

Clients are free to access barristers on the 'direct access' scheme.  You may feel that is the right choice for you if your opponent has chosen a heavy hitting big name law firm.  Bear in mind, though, that where barristers really shine is in drafting complex court documents and representing clients at hearings.  They will usually require the backup of a skilled solicitor to do the day-to-day work to progress the case to trial (including being available for their clients, liaising with the opponent, experts, witnesses and the Court, dealing with evidence and drafting letters and other necessary forms and documents).  

Solicitors will usually instruct a barrister in litigation in any event, to provide a definitive advice on prospects of success, collaborate on overall strategy, draft the main court documents to either bring or defend the claim and represent the client at trial.  

We have good working relationships with numerous chambers and individual barristers in various areas of litigation.  We can help you select a barrister based upon advocacy and drafting style, their experience of the particular area the case falls within, and that we think would be a good fit for you, so you can be assured you'll have the right team in place when you need it.

If you'd like to discuss the service you have received (or are receiving) in a litigation matter, I'm always happy to give a second opinion, or to discuss an alternative strategy if you think you'd like to try something new.  Get in touch.

Help - a developer's moved in next door

I regularly deal with queries from homeowners who have been happily enjoying their property until a development begins next door.  

Moving boundaries; land grabbing; noise, dirt or vibration disruption; trespass; verbal abuse; blocking access or rights; parking on your land without permission; destroying your trees, shrubs or crops; connecting to or interrupting services; working on party walls without permission; using a private access lane for their deliveries and then attempting to grant future owners property access over it.  These are all complaints I've dealt with.  

Any of these can be a nightmare if you are living them every day.  So what can you do?

Firstly, make sure you keep a record: photographs; records of conversations; and copies of emails or letters are all useful if you would like advice on the situation.  Copies of your deeds or conveyancing file from your purchase are also worth having to hand.  

Secondly, take prompt action.  If a fence is taken down, a boundary is suddenly relocated, your access is permanently blocked or damage is caused to your property, you should consider taking advice immediately.  Failing to act, or accepting the situation, could work against you if you decide later you'd like to take action.  

If what the developer is doing infringes your property rights it could be serious enough to obtain an injunction (an order requiring that the other party either do, or stop doing, a certain act).  This could include an order that any harassment of you or your family / visitors stops.  Harassment is often complained of in this type of dispute between neighbouring land owners.  In short, it is a course of conduct (or, if serious enough, one incident) that causes someone distress or fear. 

An injunction can often be obtained very urgently, sometimes within a day or two.  This would require acts to be done (or stopped) immediately that the neighbouring land owner receives the order, until a hearing (usually just a few days later), at which both parties can make their arguments to the Court about why the order requirement(s) should continue (or end).  

A breach of an injunction order can lead to imprisonment, so full information must be given by the person requesting the order, including a promise to pay any costs incurred by the neighbouring land owner if the order is later discharged (ended).  

This type of dispute can be particularly contentious, so it is usually sensible to take advice early, to ensure you know your options as soon as a dispute seems likely.  

If we need to, we can use our network of specialist expert boundary experts to help determine where boundaries should be using conveyancing overlays, geotechnical data and aerial photographs.

We can help you understand the steps you can take during a fixed fee legal advice appointment, which you can book online for just £250.

I've used this path to the beach for years. Now the owner has put up a locked gate

This is a common query and not a straightforward one.  

I've acted for both land owner and path user in this type of claim (obviously different claims) and it is often complex and very emotionally driven.  

Where it concerns your own home and you need to access part of your land using a path there are often more options.  You may have a right to use the path within your deeds (though this may take some digging into older conveyances, plans and transfers), have a right to use a path out of necessity or have another legal right (e.g. being landlocked or a long period of use) to assert your right to use the path.

Where you are a member of the public using a privately-owned path you are likely to find it trickier to assert a right to use the path, but there is a route you can use.  

First, you can check if the path is registered as a public right of way.  The local Council's Definitive Map will show if there are footpaths, bridleways or any other rights that you could use.  

If the path is on the map as an existing public right of way, you may wish to consider contacting the Council, which can take enforcement action against the land owner to open back up the path.  

If the path is not on the map as an existing public right of way you can apply to the Council (using a Definitive Map Modification Order application) to request that the right of way be added.  The land owner would have to open the path back up if the right of way is added.  

To succeed, the application would need strong evidence that the path had been used by members of the public (which don't have to be the same ones for the whole period) for at least 20 years before the path was blocked.  This evidence usually takes the form of statutory declarations, which are like witness statements, but instead of being signed they are 'sworn' (signed in front of a solicitor after some specific words are spoken).  You will need to have several, from different people, to cover the entire 20 year period.  

The Council will consider the evidence and decide if a modification to the Definitive Map should be made to include the path you think should be a public right of way.  Where you have shown sufficient evidence that the path was used for 20 years there is a presumption that the path should be 'designated' (included).  However, there are ways the land owner can defeat the application:

• if the use of the path has been 'interrupted' (e.g. it was blocked up) during the 20 years you have evidenced;
• if the owner put up a sign stating that the path wasn't for public use and was not intended to be designated as a public right of way;
• if the owner has objected at any point to the use of the path;
• if the owner can evidence that the use of the path was either with their permission or 'under licence' (i.e. they allowed the use of the path, but they didn't give a right for it to be a right of way and were entitled to terminate the use of the path at any time).  The owner would need to provide good evidence of the existence of the licence or terms of the permission.

This isn't a short-term solution.  It can take years for the application to be dealt with.  In the meantime, you may not have the path available to you as there are no teeth to force the land owner to open it, but writing to the owner requesting that they re-open and providing your evidence may lead to them agreeing to the designation and to reopen the path.

If you'd like to discuss more specifically a right of way you wish to have designated get in touch.

I've received a solicitors letter about a debt I don't owe - what do I do?

A solicitors letter can be scary.  Especially if you dispute that you owe the money their client is claiming.

The language used is often robust and can feel threatening: talking about interest, late payment fees, solicitors costs, issuing claims or statutory demands and damage to your credit rating.

What should you do?

That depends:  

• If you agree that you owe the money, that it became due within the last six years* and you can pay it, you probably should.  

• If you agree that you owe the money but can't pay it immediately, don't ignore it.  Further interest and charges may be added and action may be taken to escalate things.  Get in touch with the solicitor and try to arrange a lower settlement or payment schedule.  Explain your circumstances and try to reach agreement.  If you speak to them on the phone, follow it up in writing, so there is a paper trail to show the Court if a claim is issued.

• If you dispute the debt (for example it's more than you agreed to, the creditor's contract or terms are unclear, unfair or weren't provided - watch out for the solicitors letter referring to "implied terms" - or you didn't receive the product or service you expected**), you need to make sure a reply is sent as soon as possible raising the dispute.  You may feel able to do that yourself.  If you do not, seek advice.  Your letter should be succinct and factual, detailing the dispute and referring to the contract or terms where possible.  If you agree you owe some of the money (and can pay it), you may wish either to pay it, or make an offer, but you may wish to take advice first.

If you fail to reply, the creditor (the person who is claiming the money) will be able to take further action.  If you are an individual (or sole trader or partner in a business) and the debt is over £5,000, or a company or LLP and the debt is over £750, the creditor may serve a statutory demand.  That is a document which is either handed or sent to you and demands that a debt be paid in full, or that an arrangement be made to pay the money (with security or not) within 21 days.  

The statutory demand procedure can only be used for a debt that is not disputed.  If the debt is disputed, an individual served with a statutory demand may apply to the Court to dispute it, but there's a tight timescale, so urgent steps are needed if you receive one.  

A company or LLP cannot dispute the debt following a statutory demand in the same way
, but may apply to stop the creditor taking further action (including applying to the Court to liquidate the company).  This is a complex area and it is always sensible to take legal advice to ensure you are well supported.

If the debt has been disputed, the creditor cannot use a statutory demand, but may issue a claim if things cannot be resolved between the parties.  If the debt is below £10,000 the creditor will not be able to recover legal fees.  

For debts above £10,000 the fees a creditor can recover are fixed by the Court.  Most lawyers working in debt recovery will charge those fixed fees to their clients for the 'debt recovery' work they do, so will want to limit the work they do to make it cost effective.  

Bear in mind that the purpose of a solicitors letter is often to "scare a debtor into paying", so the creditor wants to keep legal costs low to maximise recovery.  There will often be a fixed process of pre-drafted letters and steps the lawyer will take within set deadlines, so you will need to watch for delays on your part that might lead to them adding the next fixed fee to the debt.  The lawyer's job is to maximise recovery, so a claim is often issued quickly to allow fixed recoverable fees to be added or to take advantage of a debtor failing to reply (or replying poorly) to a claim.  You must always meet court deadlines.

It is always a good idea to keep your own costs in mind too.  If you dispute the debt and instruct a solicitor, your own legal fees would be limited to the same fixed costs mentioned above and you would only be able to recover them if you succeed with your defence to the creditor's claim.  It may be worthwhile offering to take part in an alternative dispute resolution (ADR) procedure early (things like negotiation, mediation, round table meetings, early neutral evaluation - these terms are explained in our glossary).  The Court will expect the creditor to have engaged in a process to try to resolve the debt before issuing a claim.  It can now pause a claim to force the parties to engage in ADR.

If you are at all unsure, or feel overwhelmed dealing with the situation yourself, especially if it isn't straightforward or there a particularly high sum at stake, we can review the letter you've received and your documentation then provide you with real advice for a fixed fee of £250.

*There is a limitation of six years within which a creditor may recover a debt based on a contract.  Take specific legal advice if you are concerned about a debt being "time-barred" (not recoverable because of this time limit).  

**There are lots of reasons why a debt might be disputed.  This is not a full list.  If you're unsure whether to dispute a debt take advice.

Litigation FAQs

What is litigation?

The court process of resolving disputes.  Each party submits their position and evidence and the Court decides which party it prefers and 'finds' for them (i.e. they 'win').

What is ADR?

Alternative dispute resolution.  Any means of resolving a dispute without the Court making a decision.  This can happen before a claim is started or at any time after, including after trial if a decision isn't made immediately.  Some popular methods of resolving disputes include negotiation, mediation, round table meetings, early neutral evaluation and arbitration.

Lawyer, solicitor, barrister?  I'm confused.  Who do I need?

Possibly all of them, but that depends how things go.  A lawyer is any legal advisor, so includes paralegals, legal executives, solicitors and barristers.  You may need a combination of these advisors to help you.  

Your day to day work would usually be done by a solicitor, legal executive or paralegal under the supervision of a manager or partner.  A solicitor or legal executive will have trained to a standard required either by the Law Society or Chartered Institute of Legal Executives to get that title.  A paralegal is usually a person training to obtain one of those titles. 

You may also need a barrister (also known as 'Counsel'), either to give specific advice on the likely outcome of your case or as advocate at a hearing (or both).  A barrister is an expert in a particular area of law, where a solicitor is more of a generalist in the type of law they work within (e.g criminal, family, litigation).  A barrister can give a more definitive assessment of your prospects of success, based on their specialist knowledge and experience.  A barrister also presents your case at trial (and sometimes at shorter hearings along the way).

Then what's a litigator?

Technical definition: a person authorised under the Legal Services Act 2007 to conduct litigation.  Usually this is a solicitor, but some barristers can do it too.  Solicitors will write letters, fill in and submit forms, prepare documents and advise and liaise with you, as well as control the timetable and day to day case strategy.

Do I have to go to court?

If the claim you are involved in reaches a trial then you would generally need to attend and give evidence.  You probably wouldn't be needed at any hearings along the way, but your advisor will tell you.  If you can settle the dispute before a trial then you wouldn't need to go to court.  If you can settle before a claim is issued you may avoid using the Court at all.

Can I handle it myself?

For a lower value, straightforward claim you probably can and the Court would certainly expect you to.  Where a claim is not about money, or is high value, it is more likely you would need a lawyer.  

The Court doesn't generally order any payment of costs by an unsuccessful party in claims valued below £10,000.  A judge will assist parties without a lawyer at trial and the Court offers a free mediation service by telephone to help resolve matters.  If you wished to invest limited fees in a lawyer (which you would not get back), it might be sensible to do that in advice on your prospects and / or in getting your documentation clear.  

For claims up to £100,000 the Court has introduced fixed recoverable fees, so that a successful party can only receive a limited amount from the unsuccessful party.  The fixed amounts should allow lawyers to provide a decent service level in these claims, so you should still consider a lawyer to be a good investment for claims at these levels.  

What steps are involved?

That depends on the type of claim you have, but generally there are four stages in litigation: pre-action; during proceedings; trial; post-trial.  The pre-action stage is the time before a claim is issued, when parties set out their positions and attempt to reach a solution.  There are some mandatory steps under court rules, but this stage is where an attempt is made to avoid a claim being issued.

If it is necessary a claim is then issued.  There is an opportunity for the parties to fully set out their positions in their statements of case (particulars of claim and defence, among others).  Once that is done the Court decides what the arrangements and deadlines will be for the parties exchanging evidence (including documents, witness statements and any expert evidence) before trial.  Along the way the parties can make further attempts to resolve matters, to try to avoid a trial.  

If the parties cannot resolve the dispute, the trial will take place.  Each party will present their position and evidence and the Court will make a decision.  The Court's judgment will set out who needs to do what and when.

After judgment, the Court will deal with who pays the costs.  The parties can also ask the Court to assist with making sure the parties do what the judgment says they should.

What happens at a hearing?

Usually a barrister and a solicitor / legal executive / paralegal will attend for each party.  The barristers will each get a chance to speak on the parties' behalf.  The judge will ask for clarification of anything that hasn't been said.  At a trial there is a specific sequence for speaking and for witnesses to give evidence.  At the end of a straightforward hearing the judge will make a decision.  For more complicated matters, the decision may be sent or read at a hearing on a later date (known as a 'reserved judgment').

Hearings can take place by telephone, video conference or by physically attending a court building.

What documents will I need?

Anything relevant to the dispute.  "Document" can mean anything: information in electronic form, paper documents, video, audio and physical items.  The general rule is that if it relates to the dispute you should keep it safe.  From the moment it looks like you're in dispute you should preserve your documents.  A judge will base their decision on evidence produced, so if something is missing they may find against you, or even draw adverse inferences from the fact that it is missing.  

There could also be delays, wasted time at trial, or complications if you mark any documents.  While it may be tempting to highlight an original contract, or annotate it with your views, it doesn't go down well with judges.

How much will it cost?

The cost of litigation depends on how much work is involved.  Most litigators tend to charge an hourly rate for all work they do, but there is a move towards a more fixed structure.  It is likely that fees for cases below £100,000 will largely follow the fixed recoverable fees for the most straightforward cases.  

How can I pay?

Most firms will expect a payment in advance for the fees they will charge for a particular piece, or section, of work and will invoice monthly.  You may be able to pay by card or by standing order if that helps with budgeting.

It is possible you have insurance to cover your legal fees - look for a legal expenses or family legal expenses policy with an existing insurance policy (e.g. home or professional / business liability policies).  Alternatively, trade unions, employers and some charities will sometimes fund legal fees.  

Legal Aid is now very limited but you might also like to investigate this avenue.

Can I do a no win; no fee?

Maybe.  Some lawyers might consider a no win; no fee policy if you have a very good case and you are likely to recover a lot of damages.  

How can I save money?

It is worth making enquiries with several firms before you commit, about fee structures and hourly rates as these can vary greatly between firms.  Using a smaller firm with lower overheads and hourly rates could be a sensible way to save.

Why should I use you rather than a big firm?

- I'm cheaper.  My hourly rate is fixed and lower than those of partner level lawyers at other firms in the area.  

- You can see me for initial advice, at very short notice if you need to, for a fixed fee of £250.

- I am happy to agree fixed fees or payment plans for fees on longer term matters;

- You can be confident that you will receive my expertise in all work, rather than a lower level fee earner under supervision.  

- I make judicious use of technology to make time savings and efficiencies that will reduce costs.  

- I work flexibly to suit clients, so you can access urgent and out of hours advice when you need it.  

- You don't need to wait to speak to me to book an appointment; my website has an online booking portal so you are in control of when you see me.  

- I have real world experience of taking cases right up to final trial in both County Courts and the High Court, including reported cases.  

- I have a breadth of experience of different types of disputes that is difficult to match by a lawyer working in a larger team where lawyers tend to focus on one particular narrow area.  

How do I get started?

Request your initial appointment and we'll go from there.  You can upload documents for me to see in advance of our meeting.  Once I've made sure I'm not conflicted from acting and you've made your payment of £250 your appointment is confirmed by Zoom link.

Not sure if I'll be able to help?  Get in touch.

Where can I find further information?

The Court Service website has lots of information about claims, Court centres, hearings and forms to use.

How do I know my lawyer is legit?

With fraud on the rise and regular reports of "bogus" law firms, how can you check your litigation lawyer is reputable and trustworthy?

There are big name firms out there, who you recognise and have been operating for years.  They may be the right fit for you.  If so, great.  But there may be other, more affordable, options available in a newer or smaller firm.  This may seem like a risk, but there are ways to ensure you are protected when choosing your lawyer.

All legal firms providing litigation services should be regulated by a professional body*.  Obtaining that regulation is an involved process, with probing investigations taken into the owner(s) and processes that will be adopted by them, to ensure consumers are protected.  With that regulation comes protection for consumers, with compensation schemes in case something goes wrong and a mandatory requirement for professional insurance to cover any claims by consumers. 

Firms will often be regulated by the Solicitors Regulation Authority ('SRA').  The SRA holds a register of all solicitors, with details of when they qualified and where they work, as well as details of any disciplinary action taken against that solicitor.  There is also a list of regulated firms, with details of their trading address and other important details.  

The Law Society's Find A Solicitor service has a similar search facility, which also allows a consumer to search for a solicitor or firm based on the type of advice they need and their geographical area. 

All SRA regulated firms are obliged to comply with rules that ensure transparency in relation to their regulation and other matters such as pricing.  All firms must display an intuitive badge on their website, which confirms it is regulated.  The badge will display the date you visit the site and if you click it you will be directed to the SRA's database to confirm whether or not the website is verified.  If it is, you know the firm, and website, is reputable. 

If you're at all unsure, just ask.  A legitimate firm will happily deal with any queries you have about their regulation and insurance.

 

*An individual lawyer carrying out services as a 'freelance solicitor' may avoid regulation, but must have adequate insurance in place in case things go wrong.  If you want to look into a freelance solicitor it is best to speak to the SRA directly.