How can you achieve the best possible outcome in your dispute?
If you are unfortunate enough to be involved in a dispute, don’t despair, says Steven Smith, B P Collins’ construction dispute resolution partner. If you choose an experienced lawyer from the outset, they should make you aware of the whole process, help you to avoid any pitfalls and advise on the steps you can take to secure the best possible outcome.
Firstly, it is vital to have an initial call with an experienced dispute resolution lawyer to help identify whether you are going down the wrong path with your dispute, if it should be pursued at all or whether, it would be beneficial to involve a lawyer in the process. If they have the right expertise and experience, tThey should advise on the best course to take if you decide to continue with your case. They will need to see relevant documents – so it helps to have a good document management system with documents filed and categorised, preferably in chronological order.
A very large proportion of cases settle well before anyone reaches a trial or final hearing. the doors of a court. This is primarily because there is very rarely no such thing as a ‘dead-cert’ case, for either party, and so when considering risk and the costs of litigating something all the way to trial therefore settlement is usually the best solution. An experienced dispute resolution lawyer will help you strategically to put yourself in the best possible position for any settlement discussions. This might include: How that settlement concludes is down to a combination of factors.
Your lawyer should write a strong opening letter. This could be a letter before action or a response to such a letter, setting out your position. your side of things. Including key evidence to support your position is very important is key, so ensure that you pass all the relevant information and documents to your lawyer (even the ones you don’t think will help). Only then a lawyer will know what they are working with and also avoid any last-minute surprises, which helps no-one.
Consider whether to make an early ‘protective’ offer. A well-pitched offer which the other side is unlikely to beat at trial can put significant pressure on them to engage constructively in settlement talks. If not, they run the risk that if they lose or do not ‘beat’ the offer at a trial they will be liable for a significant portion of your legal fees plus interest. If the claim is above £10,000, your lawyer can also write a“Part 36” letter. The rules around such letters are complicated but in summary they are settlement letters sent to the other party. The key point to note is that if a Part 36 offer is not accepted, and the party who made the offer “beats” (i.e. gets more at court) than they offered to accept in the letter, then the other party risks having to pay more in costs, more in interest and more in damages at the end of the case. A well-positioned Part 36 settlement offer can therefore bring a case to an end at an early stage because the other party does not want to risk such adverse consequences arising.
During the whole process it is important that you do not post anything on social media or contact the other party or their friends or associates about the dispute. It is understandable that emotions will often run high but it is best to steer well clear, as it may undermine the strength of your case.
It is worth considering mediation as soon as both parties have laid their cards on the table as it can be a powerful way to resolve disputes. Why? Firstly, it speeds up the whole settlement process because everyone is in the same (virtual or real) building or room, and they have spent time and money to get to there. It is in everyone’s interests to engage in settlement talks productively and in good faith, which usually encourages a swifter outcome (and therefore saves money and reduces stress). Secondly, a skilful mediator will be able to focus the parties’ attention on the issues which are in dispute and help overcome often entrenched positions where it is difficult to see the wood for the trees. B P Collins regularly attends mediations representing clients and we have trained mediators as part of our team. The success rate is very high and if a dispute can be settled at mediation at an early stage of proceedings it is significantly more cost effective than going all the way to trial, unless it is a commercial dispute (though even then, this comes into play sometimes) there is often a large measure of bad blood between the parties, and it can be cathartic for each party to explain how they have been emotionally hurt by the other. Once such emotions have been explained, it is easier for both parties to look at a dispute more rationally. B P Collins has frequently seen this in action and it really does help enable matters to be settled.
If you’re involved in a dispute, B P Collins LLP provides free initial advice by telephone to help identify the best path to take. If you would like further information or advice about any construction dispute, please call 01753889995 or email
enquiries@bpcollins.co.uk.
