Dealing with a dispute

HOWARD CATHERALL of Gotelee Solicitors offers some pointers on taking a dispute to court or seeking a settlement by negotiation

DISPUTES are to be avoided (of course they are!) but sometimes you might be left with no alternative but to fight your corner.

However, it is important to think things through before you proceed with court action. At the outset you should consider the following.

n The value of the claim, the costs involved and the commercial implications of success or failure. Even if your business wins, you will not recover all costs.

n What your business is trying to achieve – is it worth the time and cost of court action? Check to see if you have insurance to help you with your costs.

n Will a dispute adversely affect your business’ reputation?

n Is there an advantage to pursuing the dispute (for example, to show that your business is serious about trademark infringement)?

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n Will the other party actually be able to pay up if you win?

n Has everyone with access to information relevant to the case been notified not to destroy it? Be careful when creating new documents and remember that emails are documents too and might have to be disclosed.

It is not a sign of weakness to try to settle and might make good business sense. Settlement can be done at any time, even during a trial. Always take legal advice first to ensure the settlement discussions (save as to costs) are conducted on a “without prejudice basis”. This means that if a settlement is not reached, anything said about the dispute during the settlement negotiations or in any written settlement offer cannot be used later at the trial.

Take legal advice as soon as possible and be well prepared – do not leave everything to the last minute. Have your lawyer with you during negotiations and do not admit anything or agree to settle without taking legal advice.

You should ensure that anyone within your business with contact with the other party is aware that there is a dispute.

There are also some things you would be well advised not to do:

n Avoid saying something that may be used against you later;

n Do not communicate with any external party (for example, a trade association) about the dispute, or send documents relevant to the case to external parties (or ask them to send them to you) without taking legal advice; and

n Do not destroy, delete or amend any information relevant to the case (for example, notes of conversations, emails or tapes).

For advice on alternative dispute resolution or to take a dispute to court, email .