If your business is involved in a commercial dispute, your biggest concerns are likely to be the financial losses that your organisation and its officers could suffer, and the size of your legal bill.
Commercial disputes can be disruptive, emotional and exhaust resources that should otherwise be spent for the advancement of the enterprise. By following the tips below however, you can help keep a lid on your legal costs while assisting your lawyer to provide considered and relevant advice tailored to your circumstances.
Consider the lawyer / client relationship
Your lawyer is there to assist and advise and will need to cut through a myriad of information to extract the relevant facts and identify the legal issues. The easier you can make this, the less time your lawyer will need to spend sorting through irrelevant details.
Compiling accurate information and presenting it in an organised manner has cost-saving benefits. For example, for a contract dispute your lawyer will need a copy of the relevant contract and any emails and correspondence surrounding the negotiations when making it. If you are claiming a financial loss, you may need to provide evidence of how this is calculated such as quotes, invoices and valuations. Getting the required information to your lawyer promptly and doing some research yourself keeps your matter on track and can help reduce costs.
If you provide information in bits and pieces, or if your lawyer needs to constantly chase you for it, your legal costs are likely to increase. Similarly, if you provide numerous documents without screening them for their relevance to your case, your lawyer will need to spend time (at your cost) sorting through them to ascertain what is pertinent.
Manage communications and meetings
Before calling or meeting with your lawyer, consider the relevant matters that need to be discussed and, write down any questions so communications can be kept on track and the information exchanged is valuable and useful to your matter.
Unnecessary detail merely complicates the facts and adds time to discussions. Having said that, you do need to understand advice and options so do not hesitate to ask for clarification or explanations of anything that is unclear.
Prepare a summary of your case
A well prepared, chronological list of facts and events can be of great benefit to you and your lawyer. Most clients have an intimate knowledge of their dispute however your lawyer is coming into the matter from a fresh perspective and will need relevant details to identify the legal issues and recommend the most appropriate action.
A chronology also helps to identify inconsistencies or vague areas where additional information or evidence may be required, and may also be used to prepare Court documents if this becomes necessary down the track.
Documents should be prepared in a Word format wherever possible so ‘soft’ copies can be provided to your lawyer and amended, or information extracted as necessary.
Explore alternative dispute resolution processes
There are various processes available for resolving disputes before, or without, resorting to litigation. In most cases, your lawyer will recommend using one of these processes in the first instance.
Negotiation and mediation can save time and money and provide more flexible outcomes than what may be available through the Courts. The evidentiary burden is generally lower than formal Court proceedings and there can be greater opportunity for commercial parties to preserve their relationship, which is particularly beneficial where ongoing business arrangements are in place.
For some matters, urgent Court proceedings should be commenced, for example where real property is at risk or there is immediate danger of losing assets or money. In such cases, you should make this clear to your lawyer so proceedings, such as an application for an injunction or the lodgement of a caveat, can be initiated immediately.
Be clear about what you want to achieve
Understanding the commercial drivers behind the objectives you wish to achieve provides focus and clarity when embarking on negotiations to resolve a commercial dispute. Generally, a strategic and pragmatic solution that avoids expensive litigation, if possible, and mitigates financial and other loss will be the desired outcome.
Corporate disputes can be complex and may involve several areas of law and the most appropriate remedy will be influenced by a range of factors including:
- the relevant facts and the issues in dispute;
- the parties’ respective legal and financial positions;
- the strengths and weaknesses of each side including the available evidence; and
- whether the parties’ business dealings are to continue.
An experienced lawyer will step you through these matters so the most appropriate commercial objective in light of the circumstances can be identified.
Obtain legal advice promptly
It may be tempting to try to resolve a dispute without legal assistance, however if negotiations become protracted or the other party is non-responsive, the sooner you know your legal rights the better.
Legal action must be pursued against the correct entity and based on an identified breach of contract, legislation or general law which should be communicated to the other party or articulated in Court pleadings. Evidence, in acceptable format, must be available or accessible to support the case.
Consulting a lawyer early can help you to identify the correct legal cause of action or applicable defences available and understand the full extent of your legal rights without wasting valuable time and resources.
Understand Court processes and stick to timeframes
If your matter goes to Court, the Court will issue a timetable for the management of your case. Practice directions will set out the correct processes to follow and applicable documents to be used.
Failure to comply with proper Court processes and adhere to the deadlines for attending directions hearings and filing documents is essential to avoid costs orders being made against you. The Courts generally have a wide discretion as to the awarding of costs, and this is a risk for all parties when matters become litigious.
Conclusion
The complexity of a commercial dispute can be daunting and the potential for legal costs to escalate is real when a matter is not properly managed. Fortunately, clients can take steps to keep legal costs down while assisting their lawyer to provide sound advice to help resolve their dispute.
If you or someone you know wants more information or needs help or advice, please contact us on 08 9335 9877 or email [email protected].
