Many businesses will, at some stage, be involved in a commercial dispute and may need to consider their legal options to resolve the matter, whether through compromise or by litigation.
Most disputes can be resolved through strategic negotiation, using alternative dispute resolution processes, rather than going to court. This can result in a commercially focused outcome that saves time and resources and may minimise the adverse impact on a commercial relationship that is already strained.
Dispute resolution processes include negotiation, mediation, conciliation and arbitration, and offer several advantages over commencing proceedings in court.
Generally, mediation is less formal and less expensive and can offer more flexible solutions than what may be achieved in court. If mediation does not entirely resolve the matter, it may at least narrow the issues in dispute. Mediation is confidential which can be particularly beneficial for the parties involved and, in a commercial context, may assist in preserving the relationship between companies that may have continuing contractual obligations.
Types of commercial disputes
In a commercial context, a dispute may involve a range of matters and often, an overlap of several areas of law. Common business disputes include:
- contract disputes
- partnership disputes
- corporate / director / shareholder disputes
- disputes concerning mergers and acquisitions
- property and leasing matters
- debt recovery and insolvency disputes
- employment disputes
- defamation proceedings
- copyright and intellectual property infringement
What is court litigation?
Litigation is the commencement of legal proceedings in a relevant court or tribunal with jurisdiction to hear and determine the matter in dispute, and order a remedy.
Legal action must be commenced within a prescribed time, otherwise the claim will become statute barred.
The cause of action must relate to the breach of a specific law or laws, be clearly articulated, and supported by solid evidence which may require both expert and lay witness evidence.
Legal proceedings can be expensive and time consuming but may be the only option where the parties to a dispute are intractable, there is a need for urgent orders such as an injunction, or where parties must defend allegations made against them.
Once an action commences in court, the parties must comply with practice directions and court processes regarding the filing and service of documents, participation in dispute resolution (where relevant), the format and filing of evidence and attendance at directions hearings, status conferences and pre-trial hearings.
Parties involved in a litigated legal dispute may settle the matter at any stage without proceeding to a final court hearing. In such cases they will need to enter into a deed of settlement and consent orders to dispose of the proceedings in court.
An important aspect of any litigation is the legal costs. If the matter is not prosecuted or defended correctly, there can be serious adverse costs implications. To minimise the risks of this happening, it is recommended that these tasks are performed by competent litigation lawyers.
Implications of court proceedings
By the time a party instigates court proceedings, the relationship between opposing sides is already contentious. Court proceedings are complex – they often involve an overlap of legal issues and there are always two or more versions of events. They can become protracted and expensive and have a significant impact on the health of a business and its owners.
Often, parties who are unsuccessful in a litigated dispute will have a costs order made against them. This means that not only will they need to pay their own legal costs, but they will be liable for the legal costs of the other party.
For this reason, it is essential to obtain an objective assessment of the legal and practical merits of litigation from an experienced professional.
Effective dispute resolution, whether informal or litigated, requires a comprehensive knowledge across various legal areas together with excellent negotiation, advocacy and case management skills.
At ICL Lawyers, all of our solicitors are recognised by the Law Society of NSW as accredited specialists in commercial litigation and insolvency law. While we aim to settle your matter commercially without court intervention, when we do go to court, we fight hard for our clients’ rights within the bounds of ethical conduct and our duties. We provide quality representation and advocacy in and out of the formal court setting to deliver workable commercial solutions across a range of dispute types.
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If you need any assistance contact one of our lawyers at info@icllawyers.com.au or call 02 9138 7800 for a no-obligation discussion and for expert legal advice.