Initial points to consider before instructing a Solicitor
Throughout my time as a Trainee in our Dispute Resolution Team, I have regularly engaged with clients who are contemplating legal action for the first time. It can be somewhat surprising for those who, after an initial conversation with a solicitor, reach the conclusion that issuing a claim may not be in their best interest. What constitutes a client’s ‘best interest’ will, of course, depend on the specific facts of their case. Nevertheless, I thought it helpful to suggest a non-exhaustive list of initial considerations that a client may wish to ask themselves before commencing legal action:
Who is your opponent?
It is important to know the specific party you intend to name in the court proceedings. This can be easily mistaken in contractual disputes where, for example, it is unclear whether you are dealing with a client acting in their individual capacity or on behalf of a company.
Consequences of getting this wrong may include an additional court application to amend the claim – which will increase delays, costs and may not be successful. Therefore, you should consider, as a useful starting point, whether any supporting documentation or correspondence with the opponent confirms the capacity in which you are interacting.
This can also have an impact on the types of claim(s) you could bring and the extent of assets that a judgment could be enforced against. The opposing party may be in financial difficulty and is unable to pay your costs or, in some cases, pay at all. Therefore, it is worth considering what assets your opponent(s) may own, and whether these assets are of sufficient monetary value to provide security.
Can I bring a claim, or am I too late?
‘Limitation’ refers to the maximum length of time to pass before you are time-barred from commencing a claim. The length of the limitation period varies from one type of claim to another, and the general consequence of the period expiring is that no action may be brought in respect of your claim.
Personal injury claims, for example, have a limitation period of three years from the later of (a) the accrual of cause of action; or (b) the date of knowledge of the injury. Breach of contract claims, in comparison, have a limitation period of six years from the date of the alleged breach.
This is a strict deadline, so an opponent may have a cast-iron defence if the limitation period has expired, no matter how strong your original claim could have been. Therefore, as soon as you become aware of a dispute, it is important to keep limitation in mind in case the necessity to issue court proceedings arises later.
Are the associated legal costs worth pursuing a claim, and are the costs recoverable?
Even if you are successful in all elements of your case and obtain an order for costs, it is highly unlikely that you will be able to recover all your costs. Even in successful cases, the courts typically award costs of around 60-70% of those incurred. In some cases, recoverable costs may be limited to a fixed amount or there may be no costs recoverable at all. Recoverable fixed costs are available in claims such as residential possession proceedings, whereas costs are not recoverable in money claims for less than £10,000.00.
Unpredictability of Proceedings
It may be considered that your case does have a strong prospect of success. However, the nature of all litigation is that it is unpredictable and this is particularly the case in relation to oral witness evidence. For example, recalling details of past events will be heavily scrutinised under cross-examination and, paired with failing memories, a strong case can unravel dramatically. This is important to consider from a cost perspective, as the losing party will be liable to pay the winner’s costs as well as your own.
Can the dispute be resolved without going to Court?
All court proceedings are subject to the Civil Procedural Rules (CPR), which refer to the procedural code that aims to deal with cases justly. Annexed to the CPR is the Pre-Action Protocol, which aims to encourage parties to resolve their dispute without progressing to a trial. This is because litigation is deemed a last resort and a Court will take this into account when determining costs. For example, if a claim is issued prematurely when a settlement is in the process of being explored, then cost sanctions may be issued – no matter how successful you are at trial.
There are several different methods of Alternative Dispute Resolution (ADR) methods that may be better suited for your dispute – whether that be in respect of costs, speed, publicity and to help preserve relationships.
The above information is, by no means, intended to deter you from pursing a claim. Instead, it is to make it clear that such a decision should be considered carefully. If you are considering issuing a claim to deal with a dispute and would like to discuss this in greater detail, please do contact our Dispute Resolution Team on 01206 700113 or contact us.