Commercial disputes are time-consuming, stressful and costly, so what can businesses do to avoid litigation or, if it can’t be avoided, maximise the chance of success?
The key to is to have strong evidence to support your case. A judge doesn’t really know what’s happened between parties, so he or she will be reliant on the evidence that is put before them by both sides.
This can take a number of forms:
- Documentary evidence
For example, a signed contract or simply an email trail or written note made at the time a telephone conversation or meeting took place.
- Oral evidence
This could be via the witness box and in a witness statement. Either way, it must be compelling and consistent enabling you to talk in detail when asked to provide oral evidence. For this to be the case, you will need to have kept notes and records of all your business dealings including times, dates and agreements reached.
Of course, you don’t go to trial overnight. There are numerous stages to the litigation journey.
A key stage is the exchange of evidence where each side sets out what evidence they are going to rely on.
The documentary and oral evidence described above is crucial here because if you don’t have any hard evidence to rely on, the other side will soon come to know that.
Conversely if you have compelling evidence that shows you are an organised, strong and reliable witness with detailed records, the other party might decide that their chance of success is far less than they originally thought and that their best option is to start settlement negotiations to bring the case to an early end.
In fact, if your evidence is overwhelming, it is possible to get the other side’s case struck out at the outset on the grounds that there is no way that they could ever win the case in light of the evidence that you have. This is called ‘summary’ judgement.
So the big lesson for businesses is that to avoid litigation or bring it to an early end, you will need strong, detailed evidence.
That might sound obvious but frequently businesses get this wrong, largely because they have failed to embed good record-keeping processes. Employee training and understanding is central to the collection of compelling evidence that can be relied on should a commercial dispute arise.
Lawyers around the world make a fortune by arguing over vague situations and by trying to fill the gaps where businessmen and women can’t easily prove what was said or what actually happened.
At Beswicks, success for our dispute resolution team is not measured in the number of long-running court cases that we are involved in, but on supporting clients to avoid litigation or resolve it quickly to minimise the time and financial burden on their businesses.
We also have detailed downloadable guides available on this topic, which provide further information on how to avoid litigation, or if it can’t be avoided, how to be successful at trial.