Commercial Litigation and Resolution

In the business world, generally, business owners are able to be pragmatic and resolve differences between themselves. Why, because this is how business wheels keep on turning. If, as a business owner, you didn’t adopt such an approach then frankly, you may never get change to run your business and so, in the main, we anticipate that 7 out of every 10 potential disputes stay just that – potential because they are dealt with in the course of business. So what happens with the other 3? Well, most of the time, you go and speak with a lawyer because being involved in a dispute is bad for business [from a business management and financial impact perspective] but not half as bad as pursuing something that should never have been pursued!

Consequently, it is important to find the right adviser that understands the impact of litigation and importantly, can identify the crux of the dispute and knows what it is that you want as a result. We believe that we have that here at Southall Hathaway & Co. Sometimes just instructing lawyers to offer a different perspective on the dispute can assist in getting your resolution either over the line or pretty close to it. This enables you to get back doing what you do best – running and developing your business!

Consequently, when we are instructed, so that we can assist you to the maximum of our abilities, we ask you what we believe to be the key question when you are involved in a dispute. Knowing the answer to this question helps us do all we can to assist you in resolving this matter because we are able to implement a strategy, the law and common sense and we believe that this approach assists us in assisting you.

We don’t use fancy legal speak because we know that you know we know the law. We believe in simplicity and being concise. Added to this, we just get things done.

Whilst we love dealing with disputes and we do as much as we can for you (including advocacy at interim hearings and trials), sometimes the nature of a dispute means that we need to add, for your benefit, a couple of “match winners”. These are primarily specialist advocates from leading sets of Chambers who assist us in presenting your dispute to the Court as efficiently and effectively as possible. Litigation by its very nature is risky and by being involved in any dispute, you accept that element of risk. One of our jobs, as lawyers, is to help you minimise that risk as much and as proactively as we can.

The lawyer assigned to your matter is the lawyer you will deal with. Whilst it will always be your case, it becomes our case as well.

The Commercial Litigation team undertakes a full wealth of Commercial & Chancery work in all Courts across England and Wales including (but not being limited to):

Contractual Disputes;
Intellectual Property;
Insolvency (both personal and Company);
Shareholder / Director Disputes;
Professional Negligence;
Agency disputes (pursuant to the Commercial Agent Regulations);
Sports Law;
International disputes;
Advocacy.

There will always be risk associated with litigation. There is no such thing as a sure fire win or loss.

Funding Your Matter

As with all law firms, all of our lawyers have hourly rates. Whilst we believe that we have more than competitive hourly rates, it is our view that the hourly rate is somewhat draconian and harks back to days gone by. The world is much more modern and rightly, clients demand flexibility for paying for legal services. With the ever changing scope of the legal world, specifically the Court forum and the litigation process (where Court fees equate to 5% for any monetary claim above £10,000.00 and the unsuccessful party runs the risk of having to pay your opponent’s costs), we understand that clients are concerned about the funding of any legal services.

We want to try and put a stop to those concerns.

As a smaller practice, we are able to offer clients a wide range of methods for funding their legal matter. We help clients involved in litigation disputes by trying to agree a stage by stage fixed fee for each step of the litigation process. We don’t believe in incurring unnecessary costs for the sake of costs and so, if we are pursuing a litigation for you, we try and utilise the same fixed costs regime that is used in the Intellectual Property Enterprise Court1. This is to hope to try and provide some form of transparency as to the fees that may be incurred in circumstances where a dispute proceeds to a final Court hearing.

Notwithstanding the stage by stage fixed model preference, sometimes this isn’t always the best option for you. We therefore also may also be able to offer to undertake work on an agreed fixed fee percentage. If these options don’t work for you or if you have a matter that is likely to be ongoing across a length of time, then we are happy to offer you a “3 tier retainer” payment option to help spread the cost across a year2. That retainer will enable you to have access to the team (across all divisions) for a fixed period of time each month for the same fee. The retainer will cover all services that you may need [whether it was drafting of a shareholders agreement to terms and conditions to drafting pleadings) and you will have the reassurance that you can have that access without the concern of significant legal fees being incurred.

Against that, should the case warrant it [and none of the other funding options that we offer are suitable for you] then we are happy to consider funding options such as “Conditional Fee Agreements” (also historically known as “no win – no fee agreements”) and Damaged Based Agreements. However, we don’t like agreeing such funding arrangements because we don’t think that they are beneficial to you, as the client. Following a change of the rules regarding Conditional Fee Agreement success fees [specifically that the ‘success fee’ is no longer recoverable from your opponent if you are successful], it is our view that the CFA is no longer financially viable. This is because you would effectively be paying twice for our fees. This is because the premium fee will always be set at 100%.

We take a similar view to Damaged Based Agreements. Under the governmental guidelines, we would charge 50% as our fee. Once you had signed the agreement, that fee is payable irrespective of when the matter was resolved. This could mean that your matter was settled within a week or a month3, you would have to pay us 50% of the transaction /settlement deal. This is in addition to the need to pay for Counsel’s opinion to verify that your claim had prospects of at least 65% (which is also a requirement before any Conditional Fee Agreement is entered into).

In our view, these two funding methods are detrimental to you as our client but we do understand that not all funding methods are suitable and so, we are happy to discuss with you a funding method that works for you.

Footnotes:

- 1 Please click this link (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs/practice-direction-45-fixed-costs) should you wish to see the fees guide from the IPEC as set out in Tables A & B of Practice Direction 45 of the Civil Procedure Rules 1998. Please note that it is not always possible or practicable to utilise this fee scale albeit where it is possible to do so, we will.
- 2 All retainers offered will be for a period of 12 months unless otherwise agreed.

3 Effectively, at any point when the matter settled / was resolved after signing the agreement.

The Commercial Litigation team undertakes a full wealth of Commercial & Chancery work in all Courts across England and Wales including (but not being limited to):

There will always be risk associated with litigation. There is no such thing as a sure fire win or loss.

Footnotes:

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