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What is Commercial Litigation?
While many people automatically assume that ‘litigation’ refers to taking someone to court, this isn’t necessarily the most accurate explanation. In fact, litigation instead refers to taking any type of legal action. This may indeed result in a court appearance, but it can also lead to a number of other alternative actions.
When it comes to commercial litigation, the action taken will specifically relate to legal issues where there is some form of corporate involvement. This could include issues such as employment, partnership disputes, or debt and insolvency.
Here, we discuss everything you need to know about commercial litigation, how cases are typically handled and what options are often explored to ensure that your business reaches the best possible outcome for your situation.
How do commercial litigation cases work?
In almost every instance, court litigation is seen as the final resort, which means various steps are followed beforehand to ensure that the parties involved in a commercial dispute are able to come to an agreement between themselves.
The courts will expect both the claimant and defendant, with the assistance of their respective solicitors, to exchange all relevant information and documentation relating to the legal issue. This will also involve the claimant writing a letter of claim to the defendant setting out the basis of the claim and giving the defendant reasonable time to respond in detail.
It should also be noted that, for certain legal matters, such as cases of professional negligence or defamation, specific pre-action protocols need to be followed to be complied with. This is saved for exceptional circumstances, usually relating to matters of great urgency.
Once documents have been exchanged and the defendant has been given time to respond to a letter of claim, both parties are encouraged to explore various methods of alternative dispute resolution (ADR) to resolve their claim.
What alternatives to court proceedings can be used for commercial litigation?
ADR is a process whereby a dispute is concluded without the need for expensive and time-consuming court proceedings. It can be achieved in various different ways, many of which our commercial litigation solicitors are experienced in advising on.
Examples of ADR include:
In some cases, it may be possible to simply resolve a commercial dispute though informal negotiation. This tends to be an ongoing process that begins as soon as a case is raised and is a private and confidential dispute resolution option.
Mediation is a voluntary process that both parties can enter into to help reach an agreement out of court. The mediation process involves both parties sitting down for discussions with a neutral mediator to discuss the details of your case and what needs to be done to reach an agreement.
It is important to point out the mediator’s job is exactly that – to mediate. They are only there to help guide the conversation and ensure that it is productive. They cannot give any specific legal advice, they cannot take sides, and they will not be able to make a final decision on the matter.
Arbitration differs in that an impartial arbitrator will be tasked with making a final and binding decision to settle a dispute between parties.
It works on the basis that all parties agree to submit the dispute to arbitration, usually by way of an arbitration agreement or clause in a contract relating to the resolution of disputes.
How do court proceedings for commercial litigation work?
While every effort will be made to avoid court proceedings, it is sometimes unavoidable. In these situations, a number of steps will be followed before a final verdict is reached by the judge presiding over the case.
The parties will first be required to work together to produce a ‘trial bundle’, which includes all the documents that will be referred to during the trial. Following this, and shortly before the trial takes place, the parties will be required to a lodge a court written ‘skeleton argument’ which summarises the arguments they will be making during the course of the trial.
Once the trial is underway, both party’s legal representatives summarise their client’s respective positions. Witnesses of fact and witness testimony’s will be cross-examined and before closing, speeches will be made which outline the key points of evidence and legal arguments.
Contact our commercial litigation solicitors
At Taylor Fordyce, our commercial dispute resolution team are highly experienced in working with a wide range of clients to achieve positive outcomes for even the most complicated commercial disputes.
We have vast expertise in supporting businesses with various methods of ADR, as well as providing robust representation when court proceedings are required to resolve a commercial dispute. Whatever the circumstances, we can provide the expert guidance and skilled advocacy your business needs.