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Litigation: Most Commonly Asked Questions

21 June

Litigation: Most Commonly Asked Questions

As part of a series of blogs exploring what our clients most frequently ask, we spoke to Emma Digby, Partner and head of the Litigation team here at Bell & Buxton...

"As a litigator who has almost two decades of experience, my days are very diverse with the problems that I deal with on behalf of my clients. That said, in litigation and dispute resolution there are three questions that my clients ask time and time again."

1. Will I get my costs back?  

"When we are dealing with matters “pre-issue” (i.e. before court action proves necessary), costs are always a matter of negotiation. By rights, they are not recoverable but they often form part of any settlement that we reach on behalf of our clients.  

Costs recoverability once we go to court is a constantly changing horizon and there have been dramatic changes in the court’s approach over recent years. It has to be remembered that costs are always at the discretion of the judge although the “winning” party will usually recover costs providing the claim is over £10,000.00 (i.e. not on the small claims track where costs are not recoverable). Any Cost Orders are dependent on a number of factors, including offers to settle during the course of proceedings (pre and post-issue of court papers), attempts at mediation and the conduct of all parties. We always hope to achieve maximum cost recovery for our clients and therefore litigation has to be conducted like a game of chess. The right pieces need to be moved at the right time to show proper conduct. Regrettably, the way that costs are assessed means that even if a client has a full Cost Order in their favour they will only recover around 70% of the costs actually spent and this means that there will always be 'leakage'. Here at Bell & Buxton we are committed to achieving the best results for our clients in the fastest and most cost efficient way to minimise this leakage. We also assess claims at the outset to ensure that our opposition is worth suing.  A judgment is only a piece of paper and we need to know that if we obtain that Costs Order that the opponent has sufficient assets for us to enforce this Order in the event of non-payment."  

2. What is my worst case scenario and could I lose everything?

"Clients come to see me and are often very distressed by the situation they face. Litigation can often be hostile, time consuming, pressured and costly. That said, we provide maximum reassurance to our clients and endeavour to build great rapport from our first meeting to ensure that we minimise the distress that disputes can cause. The reality is that when clients face allegations of negligence, breach of contract or other monetary claims, the consequences can be catastrophic. If a client is defending a claim and does not win, they face having a judgment registered against them which may have personal financial implications in the future. For most of my clients the ultimate fear is of being made bankrupt and losing everything. That is why we meticulously assess risk all our clients and advise our clients thoroughly so that we know from the outset whether we need to try and reach a compromise quickly or whether we robustly pursue or defend a claim. Even if our clients are bringing a claim the stakes can often be very high for them. A £20,000 invoice to a small business which remains unpaid can be devastating in terms of cashflow and can jeopardise the stability of a company. Every one of our clients is treated equally regardless of the complexity and value of their claim, and our team work tirelessly to achieve exceptional results for our clients whilst ensuring that they are fully involved throughout the process." 

3. Will I have to go to Court?

"I am often asked what I do for a living; my reply is often… “I am a litigation lawyer, I deal with disputes. Some might say I am a little argumentative!”. Whilst this might stick in people’s mind, in reality my objective is always to try and resolve disputes on good terms where possible. Commercial disputes arise in a whole manner of situations and I am very privileged to work with amazing clients who offer a huge diversity of issues. The reality is that only a small percentage of those issues actually ever get to trial. Court hearings are expensive and very stressful for clients. Having a board of directors out of the office for a day, a week or even months has a huge impact on the running of a business so we try and manage this where possible.  

All of our clients have to be aware that if there is no amicable resolution however, that they may have to give evidence in Court. In doing so they will be fully supported, guided and appraised of the process throughout by our expert team. That said we always try to resolve cases before court proceedings are issued – even if that’s at the eleventh hour - and we are often successful in negotiating pre-issue settlements that provide acceptable and cost effective resolutions for our clients. Even when court proceedings are issued we continue to consider mediation, arbitration, and other forms of alternative dispute resolution throughout the case and we constantly analyse the risk, merit and commercial benefit of our cases. 

Although our clients come to us because there is some conflict, we always try to preserve commercial relationships for them so that everyone is able to move forward – we think it’s better to repair a bridge than burn it!"