July 25, 2019
Disputes are an inevitable part of business – and, when they arise, every effort should be made to deal with the situation amicably. A frank and open discussion is often all it takes to resolve the issue. However, if you’re finding it particularly difficult to settle your differences, commercial litigation may be necessary and it could be time to seek the help of a specialist litigation solicitor.
What is commercial litigation?
Commercial litigation is a legal process that can be used to resolve virtually any type of business dispute. This could be with a shareholder, partner, third-party, client or customer. Essentially, the disagreement is taken to a court of law and both sides of the argument are presented to a judge. The judge will then make an objective decision on the best way to resolve the issue.
There are five main steps to the commercial litigation process. These include:
1. Preliminary discussions
A detailed letter must first be sent to the defendant, setting out the terms of the claim and allowing sufficient time for them to reply. You will then be encouraged to try a variety of alternative dispute resolution (ADR) techniques – such as mediation, arbitration and other forms of discussion.
These may or may not be successful. However, the aim is to demonstrate to the court that you have behaved reasonably and have made genuine attempts to avoid corporate litigation.
2. Commencement of the case
To start the commercial litigation process, a claim form will need to be issued to the relevant court office. This should include details of the claim and the facts on which it is based. The claim is then delivered to the defendant within 4 months and they are given 14 days to formulate a response.
Counterclaims may be made for tactical reasons, putting pressure on you to back down – and you will usually be given a chance to respond to any points put forward.
3. Case management conference
The court will then hold a ‘case management conference’. Essentially, this a meeting in which they define the issues raised and decide what steps need to be taken to prepare for the trial.
In most cases, you will be asked to disclose:
- documents that are relevant to the case (whether they support your case or not)
- any evidence that you intend to rely on, such as experts’ reports and witness statements
If the court doesn’t feel there are sufficient grounds for commercial litigation, they will shut down the claim at this stage. If they’re satisfied that litigation is necessary, they will then fix a trial date.
A written outline of your case will need to be provided ahead of the trial. This is known as the ‘brief’.
On the day of the trial, there will be just one judge, who will listen to both sides of the argument and consider the evidence that is presented. Their job is to be a completely impartial third-party. They will take however long is necessary to make a judgement and, once this judgement has been made, it will be delivered (or handed down) in court – either by the judge or their clerk.
5. Appeals and enforcement
It is possible to appeal the judge’s decision. However, permission will be required from the court – and this will only be granted in exceptional circumstances. If an appeal isn’t made (or if it is rejected), the final stage of commercial litigation is enforcement.
The unsuccessful party will be expected to pay any costs as soon as possible and, if they fail to do so, steps will be taken to enforce the judgement – such as a charging order or third-party debt order.
Commercial litigation solicitors in Liverpool and Manchester
If you’re involved in a business dispute and believe that commercial litigation is the only solution, feel free to get in touch. Prosperity Law LLP is a leading commercial litigation solicitor, with offices in both Liverpool and Manchester. Experienced and knowledgeable in this area, we can offer tailored advice on whether it’s the best option for you and will guide you step-by-step through the complex process.