As the National Head of Freeths’ Property Litigation Team, writing an article with a title of “Is going to court worth it?” sounds a bit like turkeys voting for Christmas doesn’t it? It also reminds me of that bit in Jerry Maguire when our hero, sports agent Jerry, writes an internal memo suggesting that the future for the company is fewer clients. Jerry is promptly fired, but is proved right in the end (great film by the way; if you haven’t seen it you should watch it!).
So why is this question on my mind? Well, when initially discussing disputes with clients, they often say that they want to avoid litigation. Why is this? In the Property Litigation world, clients often have continuing relationships with the party they are in a dispute with (i.e. as their landlord, tenant or perhaps neighbour), but the concern raised most often by clients is the time, cost and uncertainty of going to court. I can well understand these concerns.
In terms of time, as the courts have become more and more stretched over the years, it regularly takes the courts months to list hearings or process paperwork. I also have had a number of matters listed for trial where the court telephones a couple of days before and says the trial will be postponed for months as they do not have a Judge to hear the matter. From a client’s perspective (and mine to be honest), this is far from a satisfactory experience, particularly when there is very little you can do to prevent it.
Moving on to costs, these can spiral out of control in heavily contested proceedings. It is therefore vital that parties take a proportionate approach to the costs they incur. We, at Freeths, pride ourselves on doing this, not getting lost in interesting legal points for the sake of it and seeking to get to the heart of the matter quickly, but not everyone takes this approach.
Whilst we do all we can to ensure we get the outcomes our client is looking for at trial, one barrister recently said to me that taking a matter to court is like going to the casino without the fun! You never quite know how a witness or expert will perform under pressure or whether the Judge will have got out of the wrong side of bed the morning the trial starts. There is also the risk of the trial judge not having a background in the nature of the dispute in question. For example, it is quite possible in lease renewal litigation for the Judge determining the market rent of commercial premises to have a background in personal injury or family law. This all adds to the uncertainty.
So, what are the alternatives to court proceedings where you have a dispute in need of resolution? Here are a few:
Arbitration - Leases often include a dispute resolution clause directing the parties to arbitration. My experience is that this is a good procedure particularly as the person determining the dispute should be an expert in the field. However, arbitration can often take just as long (if not longer) than court proceedings.
Expert determination - I am a fan of the expert determination process. This is really useful in a matter where the parties have a dispute on a point of law or on a matter of construction (i.e. what does a term in a contract or a lease mean?). The parties agree on an expert, usually a QC or a surveyor in my field, to determine the matter on a final and binding basis, make submissions and the expert then determines the matter in writing. This is often quicker and cheaper than court proceedings meaning the parties can resolve the dispute promptly and move on.
Alternative Dispute Resolution - Mediation is the method of ADR which is most regularly used. If parties prepare properly, this is an excellent method of resolving a dispute although this does involve compromises on all sides.
So, is going to court worth it? In my view, in the right case, it absolutely is. However, prior to putting a matter in to court, you should really consider what the alternatives are.