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Christine Oxenburgh

By embarking on litigation, they explicitly accept that if their legal advisors are unable to resolve the matter by further argument and negotiation, eventually a Civil Court will adjudicate on the merits of the case and decide on the value of any settlement.

Unlike the criminal Courts, in which the Crown exercises its responsibility to enforce the law and is empowered to impose penalties according to the level of culpability of the defendant and not the degree of loss of the victim, the outcome of civil actions is that the parties will be bound by an Order that one or all of them obey.

This might involve more than mere money changing hands. One person - perhaps an individual, group or organisation - might be prevented from acting in a certain way toward another or compelled to behave in a manner prescribed by the Court. The Court can dictate rights and obligations.

A simple example of this might be a 'right of way' dispute where the claimant wants to gain access to somewhere that would mean crossing another's property. If access is being denied, the Court will have to decide whether this action is lawful or not.  There may or may not be financial implications. There will certainly be legal costs implications.

Golden rule

Humans are an argumentative lot by and large so the range of things about which they fall out is virtually limitless. Money, of course, is high on the list but ownership of property of one kind and another (intellectual, private, corporate), inheritance, breaches of contract, the proper conduct of business matters, and one party's rights and responsibilities toward another are all front runners in the litigation derby. 

Seemingly intractable disputes often arise when one party is seen to be infringing another's human rights or other legal rights.

Insurance litigation is another typical example.  An insurance company may have a very firm idea about the degree of compensation to which an injured party is entitled, given the circumstances of an accident and the extent of the damage to a person and property. The claimant may have very different and inflated expectations.  If all efforts to bring them into the middle ground fail, litigation is the only way to settle the matter.

It is, generally speaking, the case that the losing party must pay the reasonable costs of bringing the matter to Court and this can be the source of further acrimony and bitterness.  If you lose, by the time you've paid both sides' solicitors fees, court costs, counsel and expert witness charges and out-of-pocket expenses, out-of-pocket is what you'll be. If it's a contentious matter involving substantial sums the total costs may run into five or six figures.

The golden rule of litigation is don't get involved in it unless:

(a) you're confident you're going to win
(b) you can afford to lose and
(c) you're prepared for a long drawn out process
(d) you've taken good professional advice and heeded it
(e) you've already tried every other way to resolve the dispute and it's failed

Business

Of course, in the commercial and corporate world the issues tend to have lots of noughts on the end and the costs tend to represent a much smaller percentage of the potential gain while the pockets of the antagonists tend to be deeper. 

A bank or insurance house with profits measured in billions may see recourse to the law as a viable way of resolving a tricky problem or removing commercial obstacles but the directors of owner-managed businesses and SME should always look at the worst case scenario before throwing their hats into the litigation ring.

Righteous indignation at being shoddily treated by a supplier, customer or competitor should always be allowed to give way to cool commercial logic before becoming embroiled. There's no point in devoting so much time, effort and money to winning the case that you've put yourself out of business in the process.

Phyric victories bring no benefits to a failing venture.

Winners

That said, litigation is the specialism on which I've built my legal career. For the benefit of those wondering why as a professional litigator I should strive to discourage you from making use of litigation, other than as a last resort, I will end on a positive note.

Most aspects of the UK's legal system and the Civil Courts in particular, are the envy of the world. While stressing the reasons for not troubling the Courts with your dispute unless you absolutely must, I acknowledge that as the ultimate forum for honesty, fairness and thoroughness, our Courts are without equal. 

If the dispute is of a degree of magnitude that a fair resolution of it is imperative, then seek appropriate professional support and litigate for all you're worth. 

If you rightly believe that your case is just, the odds of prevailing are stacked in your favour. Sue and be damned.

Christine Oxenburgh is a partner at national commercial law firm Ralli, where she is Head of Business Litigation.

Related links

• Ralli Solicitors