Solving Disputes with Creative Commercial Solutions

There are some fantastic examples of innovation and creativity in business at the moment as companies move to remain solvent during lockdown. When it comes to disputes, the same commercial acumen should be the first to come into play in trying to find the best solution when faced with all the options. All the options invariably include solicitor’s fees and/or Court costs.

Finding that commercial way forward is also supported by the Courts. For many years now, the Courts have placed court proceedings on hold so parties can mediate or explore alternative dispute resolution. Whilst the Civil Procedure Rules which provide the framework for court work and past case law both set out the penalties for those who choose not to explore alternative options, examples of these rules being applied have not as frequent as perhaps initially hoped. Until now.

Times are changing. With now more pressure on the already stretched Court system, lengthy delays cannot be a prospect that many wish to face. The Courts are actively encouraging parties to seek alternative ways of resolving their dispute.

The case of DSM v. Blackpool Football Club [2020] was one such case in which a failure to opt for mediation was heavily penalised. The reasons given for refusing to engage in mediation were thought to be inadequate; simply saying that there was a strong defence was not enough. No defence, however strong, was said to justify a failure to engage in any kind of alternative dispute resolution.

The Judge in this case stated:

“Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in the ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money. Even if they do involve payment of money, the amount may compare favourably (if the settlement is timely) with the irrecoverable costs, in money terms alone, of an action that has been successfully fought.  The costs of an action will not always be limited to financial costs, however. Trial is likely to require a significant expenditure of time, including management time, and may take a heavy toll on witnesses even for successful parties which a settlement could spare them. As to admission of liability, a settlement can include admissions or statements which fall short of accepting legal liability, which may still be of value to the party bringing a claim.”

If ever there was an incentive to find a commercial way forward using business skills, this is the time.

Find out more about our dispute resolutions here.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk