Litigation & Disputes
Practice Area Specialist:
Tony Silvestro has more than 20 years experience of commercial litigation and is Managing Partner and Head of the firm’s dispute resolution team.
Tony is capable of resolving all kinds of disputes in a quick and cost effective way and to help you make sense of complex problems. Tony has experience of commercial disputes, contentious trust and probate matters, intellectual property issues, insolvency, asset/debt recovery and more with a niche practice in copyright and Trade Mark infringement.
Stillwells’ highly experienced corporate and commercial litigation specialists provide a range of bespoke services to help businesses settle disputes.
Working across a range of industries and with clients that are local, national and international, Stillwells takes a practical and commercial approach.
Whether a property, contractual, director-related or compliance related dispute, our extensive experience means that we know what to expect and how to achieve the best results.
Contact us today on 023 8072 7168 for a no obligation initial consultation.
Frequently Asked Questions
What methods are there for the resolution of disputes?
- Litigation – The use of the Courts and legal process.
- Arbitration – The use of an impartial, independent third party to decide the outcome of a dispute. Many complex commercial contracts will specifically require disputes to be resolved by arbitration.
- Alternative dispute resolution (“ADR”) (principally mediation) – The most common form of ADR is mediation; the use of an impartial third party (a mediator) to facilitate the resolution of a dispute through a confidential process.
- Negotiation – The parties attempting to reach a settlement (usually through their legal representatives) without the use of the Courts or any form of intermediary.
Which Court is likely to hear high value commercial disputes?
What are pre-action protocols?
- Encourage the exchange of early and full information about a prospective claim
- Enable parties to avoid litigation by agreeing a settlement before proceedings are commenced.
- Support the efficient management of proceedings where litigation cannot be avoided.
Specific pre-action protocols are in force for disputes concerning particular categories of case (for example, construction and engineering or professional negligence). If a case is not covered by a specific pre-action protocol, it should comply with the Practice Direction on Pre-action Conduct and Protocols (“Pre-action PD”); the essence of which is to encourage parties to exchange information and make appropriate attempts to resolve the claim without issuing proceedings.
How are proceedings commenced?
- Disclosure and inspection of documents
- Exchange of witness statements
- Exchange of expert reports
In terms of timing, one would expect to get a trial date sometime between 12 and 18 months from issue of the proceedings. The Court encourages parties to try to settle their disputes without going to trial and this allows some room for a stay of the proceedings to allow the parties to negotiate through informal or formal mediation.
Is a party to a dispute obliged to disclose all documents in its possession whether helpful or adverse to its case?
- Documents on which it relies
- Documents which adversely affect its or any other party’s case
- Documents which support another party’s case
What is deemed a reasonable search is dependent on the number of documents involved, the nature and complexity of proceedings, the ease and expense of retrieving a document and the significance of any document. The litigant must certify the extent of the search carried out and that, to the best of its knowledge, it has complied with its duty of disclosure. The duty of disclosure continues until proceedings are concluded. A “document” includes all media on which information is recorded – it includes electronic information, and can, in principle, extend to deleted data. There are specific provisions in the rules for electronic disclosure.
Are any documents privileged from production?
- Legal professional privilege is available in respect of certain documents. This can be sub-categorised into legal advice privilege and litigation privilege.
- Legal advice privilege means that a party is not required to permit inspection, if a document is a confidential communication between a lawyer and his client for the dominant purpose of obtaining or giving legal advice. This would include an attendance note made by a solicitor after giving legal advice on the telephone to his client.
- Litigation privilege is available if a document is a confidential communication which is passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice or evidence or information for use in the conduct of litigation which was at the time reasonably in prospect. This would include communication between a lawyer and a witness or a lawyer and an expert (unless the court considers the instructions inaccurate or incomplete). This would also include internal memos between lawyers in the same firm working on a case or instructions to a barrister.
- Without prejudice communications would cover documents whose purpose is a bona fide attempt to settle a dispute. Without prejudice save as to costs means a court will not see the document’s contents unless it is considering costs.
- Privilege against self-incrimination is available for documents that would expose a party to criminal penalties.
What remedies are available?
- Possession orders (orders seeking possession of land or property)
Injunctions may take various forms. The most common type is a prohibitory injunction, preventing the defendant from taking certain steps. There are also mandatory injunctions, requiring the defendant to do something (although the Courts are more wary of granting such an injunction). Interim injunctions (provisional measures made before trial, which remain in force until discharged by the court) are also available, including:
- Freezing Injunctions – these prevent a defendant from disposing of or otherwise dealing with his assets until judgment can be enforced
- Search Orders – these allow claimants’ representatives (usually solicitors) to enter and search the defendant’s premises (supervised by an independent solicitor) to remove specified material to preserve evidence or property. They are being used particularly in the intellectual property field, to seize material produced in breach of copyright. It should be noted that these are difficult instruments to wield as the Court considers them a draconian remedy, and they are not intended as a way to obtain evidence. Therefore the evidence in support has to be very strong and there are significant sanctions for abuse.
How much does litigation cost?
How does a trial work?
Can I Appeal?
- Wrong, which includes:
- An error of law; or
- An error of fact; or
- An error in the exercise of the court’s discretion
- Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.