As we always like to say, litigation is similar to a visit to the dentist, you have a severe pain, you don’t anticipate or of course want that pain, and it costs money. Certainly, no litigation situation should be taken lightly, or without proper consultation with litigation solicitors, since even with a small claim in the County Courts, you can quickly find yourself out-of-depth trying to work out whether you are in the right legally, let alone how to deal with the court rules and then there are the tactics such as offers to settle and so forth.
One thing which many prospective claimants in court claims do not appreciate is that, under the HMCS system, even if a case goes all the way to trial and the claimant succeeds and gets a costs order, the court will do nothing to thereafter ensure that the defendant pays up. It is entirely incumbent on the claimant to then pay further fees and to perhaps utilise one of the available ways of enforcing a judgment, such as a charging order, attachment of earnings, using the bailiff service, or, the big stick of corporate winding up or personal bankruptcy. Frankly, many of these enforcement methods are hit and miss, so a claimant would be very well advised to carefully consider the issue of enforcement at the outset and to keep the issue under review throughout the case.
One area becoming more popular and which is actively encouraged by the courts is mediation. This is often a better outcome and a lot cheaper than going to court. Statistics show that if you can get the warring parties into a venue for a day or however long, there is a very good chance that a skilled, independent mediator will broker a deal. What is the difficulty often with mediation, whether in a divorce situation, commercial dispute or any other form of claim, is convincing the parties to agree to the process, as one or both often think agreeing to it is a sign of weakness or that it’s binding, neither of which is correct, except to the extent that if an agreement is reached and recorded it is usually agreed as binding both parties. Otherwise, the mediation process is entirely confidential and without prejudice, so the court won’t know about it if no agreement is reached. What’s interesting about this is that it shows just how psychological disputes are, whether family law disputes or otherwise. Once formal court proceedings are started, the parties positions tend to become ever more entrenched, and this is why an early mediation is usually better, and also because there are rarely any outright winners in litigation.