“So you want your day in Court?” Paris Smith's Helen Brown talks dispute resolution

With so many legal dramas and true crime programmes on TV, it is not surprising that, when faced with a dispute, most people expect to have their “day in Court” to face their opponent and see a judge in a wig bring down his gavel and pronounce guilt against your adversary.

The reality is very different. Did you know that of 443,000 cases issued in the County Court in the first quarter of 2023, only 3% actually had a “day in Court”?[1]

So why is that? Let’s look at the reasons, and then consider some alternatives to a day in Court.

• To issue an average claim in the High Court or County Court costs 5% of the value of the claim up to a maximum of £10,000, and that is before you factor in the Solicitor’s charges for preparing the case and the Barrister’s fees for producing the formal Court document.
• The average time from issuing a claim in the County Court to having an average 2 day trial is in the region of 80 weeks[2].
• In those intervening weeks, your legal team have a number of hoops to jump through on your behalf, including gathering relevant documents and scheduling them for the Court in a very particular way; considering your opponent’s documents and looking for missing evidence; taking witness statements from your witnesses;
• The discovery of a “smoking gun” in a case is extremely rare and the nuances that you think are important can be lost in the bundle of documents and the live evidence of the witnesses.
• Judges are human; they have bad days, they have personal prejudices and opinions and you will very rarely get any lawyer to give you more than a 70% chance of success for that reason.
• Trials are expensive. You would not have even the simplest of cases heard without spending in excess of £25,000.
• Appeals are rare, expensive and can only be brought on limited grounds like obvious errors in the law or procedural irregularity.
• The winner doesn’t take all; the winner’s costs are assessed by the Court and there can be a 30 – 40% deficit between what you pay your legal team and what you recover (although this is due to change in some Courts from 1 October 2023 with the introduction of a fixed costs regime).

So are there any alternatives?

Yes, in fact there is a baked in requirement in the Civil Courts of England and Wales to consider what is known as ADR (Alternative Dispute Resolution) and this can take a number of forms.

• Mediation: The parties hire a neutral accredited Mediator at joint cost who tries to broker a deal between the parties. These can take place online or in person, where each party sits in their own room with their legal team and the Mediator shuttles back and forth. Mediations are best attempted early on in a case before the parties have spent too much on legal fees. They are most suitable for commercial disputes whether there is an obvious “deal” to be done, but can also work well in highly emotional disputes like inheritance/will disputes. They do not work so well where the parties are at loggerheads on “points of principle”.
• Arbitration: This is becoming increasingly popular where the parties would still prefer a decision imposed on them by a “referee” but they do not wish to wait for the wheels of His Majesty’s Court Service to turn. An Arbitrator is effectively a private Judge, usually chosen for their expertise in a particular field. The Arbitrator will usually set the rules of engagement; for example, there may only be written submissions on the law and facts or there may be live witness evidence like a Court. The decision of an Arbitrator is binding unless the has been a “serious irregularity” or an error on a point of law.
• Expert determination: This method is useful where there is a dispute not so much about the evidence, but maybe about a specific point of law as it affects and industry or the dispute is over the valuation of a loss rather than whether the loss actually occurred. The parties can choose an industry specific expert like an accountant or a surveyor to give a decision, usually based on paper submissions. The parties can choose to agree to make the determination binding, or not, as they wish.
• Early Neutral Evaluation: Under this procedure the parties appoint a “neutral”, who is likely to be a judge, a retired judge or senior Barrister who hears each party’s submissions and then states their view on the likely outcome at trial. That view is not binding but it can be the catalyst for more focussed and productive settlement discussions.

Still want your day in Court? Of course there are still some cases where that is still the best and preferred option, where the parties wish to establish a precedent or are arguing over a point of principle. But don’t rule out the quicker and better value options that can still deliver a satisfactory result.

• https://parissmith.co.uk/

[1] HM Gov Ministry of Justice Civil Justice Statistics Quarterly; January to March 2023

[2] HM Gov Ministry of Justice Civil Justice Statistics Quarterly; January to March 2023