5 myths about litigation that everyone should know

An obvious point – nobody is “guilty” in the civil courts; to laypeople, criminal law and civil law terminology is often confused. As settlement inherently involves compromise, clients often mistake this as weakness. Whilst the strengths and weaknesses of any given case naturally influence the extent to which settlement is advised to be sought, there are other factors such as the time, large costs and stress of litigation which always have to be borne in mind. Another relevant factor is a commercial assessment – is taking the matter all the way to trial worth the costs that follow? The courts are becoming increasingly activist in encouraging parties to try and settle disputes before trial, meaning that settlement always ought to be on the table.

We of course understand why anxious parties spending large amounts of money on lawyers want to be reassured and told that their case is, to use a basketball terminology, a “slam dunk”. Steer very clear of any lawyers who advise you that you cannot lose. For a start, legal disputes have and will always have grey areas and unanswered questions which could be interpreted one way or another. Further, whilst judges are typically excellent arbiters of law and justice, they are not perfect and do make decisions that are wrong and sometimes, based on their own personal prejudices and preferences. The rule of thumb to follow is that if your prospects of success are appraised to be above 50%, you have a credible argument to take forward.

The generally understood rule that “the loser pays the winner’s costs” obscures how costs actually work. For example, for small claims usually up to £10,000, the winner does not get any legal costs save for rare circumstances. For Fast-Track matters typically £10,000-£25,000 in value, the recoverable legal costs are fixed. For Multi-Track matters worth more and with greater complexity, the winner does recover more legal costs from the loser. However, these are almost never anything like all the full amount incurred; recovery of 60-70% of costs is a more realistic and common outcome.

If only it was that simple! Ideally, the loser will follow the judgment to the letter and that will be it. In reality, winning parties get a piece of paper from the court entitling them to certain remedies, but usually will need to spend further time and money enforcing what the court has granted them. This leads to a consideration of further options such as bailiffs, bankruptcy, insolvency, charging orders, third-party debt orders to name a few. It is not enough to obtain judgment, you need to follow through and realise it.

Our article about what to do in the event of receiving a Letter Before Action from another party did not say to leave it alone and forget about it for good reason. Once you are in the litigation process, however unpleasant it is, you have to accept it and deal with the situation. Unfortunately, clients often pre-action and even once proceedings have been issued opt to bury their heads in the sand. This has no upsides; as it leads to instantly being on the back foot in the litigation from the start and increases costs, especially if the issuing party obtains default judgment, with a court application then being needing to reset the position of the proceedings when it could have been avoided at the outset. Always engage from the very beginning and don’t expect issues to vanish into thin air.

Our team are experts and know what needs to be done and what the timeframes are. We know the law and exist to help you. Do not hesitate to contact us today to discuss your case and find out how we can help you.