Our aim is to obtain an appropriate resolution of your dispute quickly and cost effectively. Whether or not proceedings have been issued, settlement should be considered at all stages of the dispute. A settlement avoids the unpredictability or risk of litigation, can usually bring a faster conclusion to the proceedings and avoids spending costs you may not get back.

 

Frequently, Judges will themselves encourage parties to co-operate and reach a constructive resolution of their dispute. Indeed, failure to explore a settlement can even lead to an Order for costs being made against the party who refuses to discuss settlement constructively and sensibly.

 

New Court procedures now provide even more reason to settle and mediation is often considered. More details are given below.

 

 

No longer should an offer to settle by a Claimant be seen as a sign of weakness. A Claimant's Part 36 offer is an invitation by the Claimant to accept a certain sum in settlement and this invitation may put the Defendant at a significant disadvantage if not accepted.

 

The offer should be in writing and be open for acceptance for a period of at least 21 days. The offer should also make it clear that it can be accepted after 21 days as long as the parties can agree who should be responsible for the costs incurred or if the Court gives permission.

 

If you make a Part 36 offer before proceedings are issued, you need to consider whether a condition should be attached to the offer that a contribution towards your costs should be included. If you make your offer after proceedings are issued and the offer is accepted within 21 days then normally you will be entitled to a contribution towards your costs up to the date when the offer was accepted.

 

The Defendant now has to consider the risk of refusing the offer. If the Defendant does not accept the Part 36 offer and the Claimant does better at trial than the Part 36 offer, the Court has the power to:

1. award interest at a rate of up to 10% above the bank base rate on any sum awarded from the last day upon which the Defendant could have accepted the offer without having to obtain the Court's permission; and
2. order the Defendant to pay the Claimant's costs on a more generous basis (called "indemnity costs") plus interest at a rate of up to 10% above the bank base rate.

Consequently, if you are a Defendant who receives a Claimant's Part 36 offer it will be necessary to analyse the merits and value of any claim you face and decide whether there are any good reasons to continue to fight the case.

 

 

A Defendant also has a weapon to offer a settlement sum, which can place the Claimant at a significant risk, if the offer is not accepted.

 

In a similar procedure to a Claimant's Part 36 offer, a Defendant can offer a certain sum at almost any stage in satisfaction of the claim together with payment of the Claimant's costs up to acceptance. The offer must be said to be open for at least 21 days. If the offer is to resolve a claim for money and proceedings have been issued, the sum offered must at the same time be paid into Court. The funds will remain in a specially designated account earning interest until the offer is either accepted or the Court orders the funds to be paid out. After the offer period has expired, the Defendant's offer can only be accepted with the Defendant's agreement or with the permission of the Court.

 

Once a Defendant's Part 36 offer has been made, the Claimant has to consider the litigation risk. If the Claimant does not accept the offer and fails to beat the Defendant's offer/payment into Court, then the court will usually order the Claimant to pay the Defendant's costs since the offer expired. Further, the Claimant will have to pay its own costs since the payment in.

 

Clearly, the value of any offer and its timing will be extremely important and advice should be obtained from your legal advisor as to the best strategy to adopt.

 

 

Mediation is an alternative route to resolve disputes without going to Court. The principle behind mediation is simple: to bring together two opposing parties to meet an independent third party (the mediator) whose role it is to assist the parties in reaching an out of Court settlement.

 

Settling a dispute by mediation is potentially quick, reduces legal costs, is flexible and most importantly can often result in the parties still being able to do business with each other. It is also important to stress that the procedure can be confidential and without prejudice to ongoing legal proceedings.

 

Almost all litigants want to settle their cases without going to Court and a trial. Consequently, many cases settle during the preparation for trial or at the door of the Court. Indeed, only 5% of cases actually get to trial. If the desire is there to reach an agreement then it must make sense to approach settlement discussions in a more structured and constructive way with the assistance of mediation earlier in a dispute before the legal costs have become significant.

 

The first step is to appoint a mediator. The parties may then decide to enter into a mediation contract to define their respective responsibilities and obligations such as what will be discussed, confidentiality and the fees of the mediator. When the day of the mediation arrives, each party will normally be invited to explain their case verbally to the other party and the mediator. After that the parties will go away to separate rooms and the mediator will shuttle between the parties looking for common ground.

 

The mediator is not there to decide the case but to assist the parties in considering the strengths and weaknesses of their positions. The "ownership" of the case itself remains with the parties and it is ultimately your decision as to whether a settlement can and should be reached.

 

Figures show that something in the order of 90% of cases mediated in this way reach a settlement usually with a huge saving in legal fees. Even if the case does not settle on the day of the mediation, it has a greater possibility of settling shortly afterwards particularly when a thorough consideration of the issues has focused the attention of all parties on what they are attempting to achieve.

 

It is important for the parties to resist the temptation to reach a settlement that is below their bottom line in pursuit of a settlement for settlement sake usually at the end of a very long and frustrating meeting. It is important that you do not sell yourself short and that you make sure that before you enter the mediation that you have received comprehensive legal advice as to the strengths and weaknesses of your case.

 

Jonathan Mortimer of the York office is trained in this area and has experience of representing clients at mediations.

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This guide provides brief information on the duty imposed upon clients to preserve and disclose relevant documentation when involved in a dispute. The guide deals with the obligation in general terms and specific advice should be sought on any given case. For further information, please ask your contact within the firm or Jonathan Mortimer in our York office.

 

 

The merits of any claim will frequently be determined by the availability of supporting documentary evidence. Further, parties to litigation are obliged to disclose all documents which are relevant to the case whether they may be helpful or harmful. Consequently, careful management of documentation is required by you.

 

 

As soon as you are aware that a dispute is likely you should:-

• Collate all documents which could possibly be relevant to the issues in dispute and ensure that they are given to your legal adviser.
• Ensure that no documentation is destroyed, written upon or rearranged in order.
• Open a new file to retain separately all documentation which comes into existence while dealing with the litigation and obtaining legal advice.
• If a business, appoint an experienced Manager to take responsibility for collating documentation and ensuring that the duties of disclosure are followed by all members of staff.

 

Once proceedings have been issued, you will usually be obliged to produce standard disclosure. This means that you are required to disclose:-

• Documents on which you will rely upon in support of your case.
• Documents which adversely affect your case, adversely affect another party's case or support another party's case.

In addition, you may also be required to produce specific disclosure. This is where the Court decides that a certain category of document should be disclosed.

 

In accordance with these obligations, you are required to undertake a reasonable search for documentation. Consequently, consideration will need to be given to whether documentation is held at different locations, in storage, or whether there are duplicate files available for example. You should obtain advice as to how the search should be undertaken in practice. The Court can impose sanctions on any party who does not comply with the duty of disclosure which could include a costs penalty or indeed striking out the claim.

 

It will ordinarily be necessary to prepare a formal List of Documents which will describe the documents in a logical order. The List will also include a disclosure statement signed by the individual responsible for documentation. The statement will confirm the nature of the search made (including any limitations to the investigation) and states that to the best of his or her knowledge the duty has been complied with.

 

 

For the purposes of disclosure, we mean documentation in the broadest sense. For example, faxes, jottings, internal notes and diaries. Documentation also includes any information recorded electronically such as e-mails or other documentation held on a computer.

 

It is also necessary to disclose any documents which are, or have been, in your control to obtain. For example, it may be necessary to describe any documents which have been lost or to disclose any documents which are held by a third party which you are entitled to see upon request.

 

Generally speaking, there are only two types of documentation which does not have to be disclosed. Primarily, documentation which comes into existence while taking legal advice on actual or pending litigation will not have to be disclosed. Secondly, documentation created for the purpose of attempting to settle a dispute (which is usually marked "Without Prejudice").

 

• You should be able to look at the documentation listed in another party's list. This approach often enables parties to assess the merits of their case in greater detail.
• The obligation to disclose relevant documentation exists until the proceedings are concluded. Consequently, should it become apparent that you have overlooked or come across documentation you did not know existed, you should contact your legal advisor immediately.
• Any document obtained from an opponent can only be used for the purposes of the present proceedings unless it has been directly referred to or read out in a public Court. Consequently, it is not possible to show documentation to third parties or to use the information to assist in a business venture.  

 

This guide provides brief information on the need for clients to sign from time to time a Statement of Truth. This guide only deals with the obligation in general terms and specific advice should be sought on any given case. For further information, please ask your contact within the firm or Jonathan Mortimer in our York office.

 

 

It is a fundamental principle of the legal system that facts explained to the Court, whether in oral evidence or documentary form, should be accurate and true. If a Court loses confidence in a party's ability to put forward accurate information a case be can severely prejudiced and in extreme cases an individual can be held to be in contempt of Court. The Court procedure emphasises the importance of this basic principle by requiring a number of documents to include what is called a Statement of Truth.

 

 

We will advise you when a Statement of Truth is required and who should provide it. By way of example, it may be required to complete a Witness Statement or a Statement of Case. In summary, it is a statement that the person believes that the facts stated in the document are true and accurate. The Statement should be signed by either the party to the proceedings or the maker of any Witness Statement (if a different individual).

 

If a company is required to give the Statement, a senior corporate officer should sign who has sufficient knowledge of the circumstances of the dispute to have an honest belief in the truth of the document being signed. Failure to provide a Statement of Truth can lead to Statements of Case being struck out or evidence being disregarded by the Court.

 

 

Proceedings for contempt of Court could be brought against an individual who makes a false statement in a document which contains a Statement of Truth if he or she did not have an honest belief in its truth. Any document which we present to you with such a statement needs your very careful consideration.

 

From time to time, we may sign a Statement of Truth on your behalf. We will do so based upon the instructions which you have provided to us.