When it comes to business disputes, resolution does not exclusively lie with the court or a judge. In fact, disputes are resolved in a number of ways. Some might say that is a good thing as it reduces the strain on the public purse and court system.
A common complaint is that the court process is too lengthy; clients want speed of thought and action to guide them through any dispute process or mandate as quickly as possible. The challenge for all litigators is getting things done while working in a system with rules and judges who have limited time to deal with a large volume of business.
On the other hand, the UK courts do offer many clients what they are looking for. Urgent applications and remedies can be available to protect client interests pending a final determination. It should also be noted that the rule of law in the UK is something we can be proud of. Notwithstanding litigation risk, the application of the law, with precedents and skilful advocacy applied to a particular set of facts, should allow some real and meaningful advice to be given to clients. Supporting clients with business-critical disputes in court can extend across a wide range of areas and purposes, from Brexit-related matters to insolvency situations. Our aim is to offer those clients greater choice and flexibility through the opportunity to instruct a team of solicitor advocates, when embarking on court battles.
That being said, many commercial clients avoid the court system entirely by incorporating dispute resolution preferences in contracts. The oil and gas sector is known for including various guises of mandatory dispute resolution clauses, often with English law governing, which ensure disputes can be resolved outwith the public court system. Clients often choose from the suite of alternative dispute resolution (ADR) processes to fit with the types of contract they are entering. We are often involved in advising clients during contract formation on dispute clauses which include escalation procedures, expert determination, mediation and arbitration. They are as likely to end up with matters being resolved under contracts with provision for international arbitration under LCIA or ICC rules than domestic arbitration.
Another growth area for dispute lawyers and clients to grapple with is investigations and dealing with regulators across a wide spectrum of issues. Whether in the financial services or energy sectors, there has been no bonfire of regulations – far from it, legislation and regulations can be expected to increase. Prosecutions can be avoided and reputational risk managed by employing people who work well with the authorities. Clients clearly like that approach and want the right kind of lawyers that can find a way to work with decision makers in all sorts of organisations.
Finally on ADR, and consistent with the theme of dispute lawyers resolving issues away from the public gaze, it’s worth mentioning the construction industry for the way in which it resolves some high-value disputes. Adjudication has proven to be a quick and often intense process which can produce an outcome within the sorts of timescales that can make a difference for clients.
There is no reason parties to any commercial contract could not adopt adjudication, which at one time was thought to allow the parties to an ongoing contract to deal with a thorny payment issue while allowing them to move on and retain their ongoing business relationship. Some IT contracts might benefit from that sort of approach or a sophisticated alternative version adapted for contracts that are time-consuming to implement.
To conclude, businesses will always face claims, regardless of efforts to mitigate the possibility of a claim arising. Large and complex claims do still arise under the headings of health & safety, property damage and professional negligence.
While claims can end up in court, the vast majority settle before a judge has to impose a decision. Ultimately, most clients still want to avoid disputes and seek lawyers who can use expertise combined with the most appropriate process to reach a satisfactory settlement.
Stephen Goldie is Head of Litigation, Brodies LLP