Don’t get frozen out of the dispute – why engagement is as crucial in commercial litigation as in politics
With a general election in full swing there has been much excitement around the now-traditional televised debates between party leaders. However, the content of certain debates has arguably been overshadowed by the attendee lists, as various parties have elected either not to attend at all or to put forward someone other than the party leader as their representative.
This strategy has appeared to backfire somewhat, with party leaders facing heavy criticism for their lack of engagement with the electoral process - culminating in a memorable incident where a block of ice stood in for chief refusenik Boris Johnson in a televised climate change debate.
If you find yourself involved in commercial litigation, you must be aware that the risks associated with not engaging properly are similar to those in politics. At all stages in the process of a dispute, simply putting your head in the sand and hoping it will go away will almost always make matters worse - often significantly so.
This is true even at the pre-action stage. When you receive a legal letter setting out the basis of a potential dispute, that early stage often represents a golden opportunity for sensible discussions with the other side. Due to the cost of litigation (which can range from significant to eye-watering), it is ordinarily in neither party’s interest for the matter to actually go before the courts.
Proper engagement at this stage can help to identify the real issues in dispute, the other side’s priorities, how serious they are and what it would take to make the dispute go away – all before either party has started racking up huge costs (which generally leads to an entrenchment of positions, and makes a sensible resolution less likely).
The “no-show” approach can be even more dangerous once court proceedings have actually started: failing to adhere to court deadlines, failing to submit pleadings or just plain failing to turn up to court hearings can all lead to very serious consequences. In a worst-case scenario, the entire action can be decided in the opposition’s favour. Throw the possibility of being ordered to pay the other side’s legal costs into the bargain, and the risk of failing to engage becomes all the more real.
For that reason, any time you receive a formal communication from the court, it is best to try to figure out what steps you are expected to take – ordinarily, this will involve passing the document on to a solicitor who can advise on the process. Some of the deadlines can involve a very quick turnaround, so even a day or two of delay can have serious consequences.
Finally, in the unhappy event that a court judgment is granted against you, failing to deal with it in a timely manner will only make matters worse. Interest on court judgments is generally granted at a far higher rate than most clients are used to, so it does not pay to leave court debts outstanding for any significant length of time.
Also, if the other side is forced to take formal enforcement action to compel you to comply with a court order, you are likely to have to bear the cost of that action (which could add thousands to the total bill). You may even find yourself in the unpleasant position of having a frozen bank account, a deduction from your monthly wage or property you cannot sell.
While politicians may try to explain away their non-engagement by using clever words and charisma, the law is less forgiving than the British public in this regard! The golden rule is to show up; engage with any dispute that arises, and do so as soon as you can.
Legal disputes can be painful, and it can be tempting to ignore the problem (at least for a while) - but doing so will only ever hurt your chances of securing the verdict you want.
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