Chris MacCafferty – Associate – Professional Negligence

It Doesn’t Have To Be That Way!

Ever since I started dealing with peoples disputes 9 years ago my mentor always said to me, “Litigation is a last resort.” Whilst some people find this hard to believe when I tell them, this is something I have stood by.

I accept that sometimes litigation is inevitable; you may need to prevent someone causing you financial harm and therefore an injunction maybe required. Your opponent may not cooperate in avoiding Court leaving you either to back down or continue to Court to protect your interests. Commercially you may choose the former but quite often this is not financially viable.

So, whilst the alternatives to Court action may not always be possible, they must always be considered first. Going back to my early teachings, litigation is the last resort.

So what are the alternatives?

First and foremost before any third parties get involved, try and get everyone around the table for without prejudice discussions. This can be done without any Solicitors involved but it may be preferable to have legal representatives for both parties particularly if emotions are running high. Even if the meeting does not result in the dispute being resolved, if done properly, everyone should have a better understanding of each others point of view and the issues may be narrowed. This in turn can make the use of other forms of dispute resolution or indeed going to Court quicker and cheaper because the number of issues to be resolved have been narrowed.

Beyond a without prejudice meeting the type of dispute resolution you choose will depend on a case by case basis. That said mediation can be used in all types of cases. This form of dispute resolution continues to have judicial endorsement and in fact there are some countries in which it is mandatory. Whilst I am not convinced mediation being mandatory is the way forward, (I believe that the parties should be entering mediation willingly and therefore genuinely wishing to try and settle their dispute), the parties must give it serious consideration preferably before the matter ends up in Court. It was only in July this year when Lord Justice Mummery said in the Court of Appeal in the case of Pennock v Hodgson mediation is a “valuable service”. In this case the legal parties whilst considering mediation did not undertake it and Lord Justice Mummery concluded that “the unfortunate consequences of case like this are that, in the absence of any compromise, someone wins, someone loses it always costs a lot of money and usually generates a lot of ill feeling that does not end with the litigation.”

Another powerful dispute resolution tool at the parties disposal is early neutral evaluation. This is where a third party who is expert in the issues between the parties provides an evaluation as to how they believe the dispute will be resolved if the matter ended up in Court. In fact it is now possible to instruct retired Judges to provide such a report.

If you are in a position where you wish to simply bring the matter to a conclusion as quickly and as cheaply as possible and are prepared to take the risk that the matter may not go your way expert determination is probably the best course to take. In this scenario both parties can either agree to jointly instruct an expert or separately put submissions to the expert whereupon she/he will provide a determination which is binding on the parties.

In the building industry adjudication has been used for many years. This is where the parties appoint an adjudicator to again provide a binding determination on specific issue(s) referred to the adjudicator. The adjudication is enforceable through the technology and construction Court and can be overturned either by Court proceedings or arbitration.

There are other forms of ADR and combinations of more than one can be used or even hybrids. The bottom line is evaluate the alternatives first before stepping anywhere near a court.

If the above has not convinced you to give serious consideration to alternative means than “having your day in Court” or raised your awareness that you do not have to walk away for fear that the case will be lengthy and expensive if it ends up in Court then please consult your solicitor.