What Is the Role of a Commercial Litigation Solicitor?

A dispute is not something that any business owner chooses to become involved in, or could even predict when they set up their new business. However, the reality is that disputes often arise in the business world, and sometimes those disputes can lead to formal court proceedings being pursued, through the process of commercial litigation.

A commercial litigation lawyer will typically advise and assist in a wide range of areas related to commercial disputes. These range from relatively straightforward issues, such as a customer failing to pay a supplier’s invoice or reneging on a contract, to more challenging or complex disputes. For example, this might include cases where a party is seeking to recover assets located in another jurisdiction, or where owners of a business (shareholders) fall out, placing the survival of the business and jobs in jeopardy.

As a team of experts in commercial litigation, we have specialist lawyers who can assist with a spectrum of disputes, such as media and reputation management, intellectual property, property litigation, sports law, probate and wills disputes, company disputes, injunctions and other areas. When considering who to instruct, it is vital your solicitor holds the expertise needed to understand the specific issues and your objectives, to mitigate your risks, and ultimately to advise and assist you on the best options to effectively and commercially achieve those aims.

When a dispute arises, you should look to take legal advice promptly because, depending on the nature of the dispute, early legal advice can often lead to a quicker and more cost-effective resolution without requiring a court’s intervention.
Read on to learn more about how commercial litigation solicitors can assist you at each stage of the litigation process, or get in touch with the commercial litigation team at JMW to enquire further.

Pre-action

Formal court rules, known as the Civil Procedure Rules (CPR), set out specific pre-action conduct and procedure for parties to follow in the event of a dispute. Furthermore, any contract or agreement in place between the parties may detail the dispute resolution process which the parties are expected to adhere to. The rules are in place to help the parties involved in a dispute to understand one another’s position, a process that typically involves exchanging information and documentary evidence. After this, they are expected to attempt to settle their issues without the need for court proceedings, and to consider alternative dispute resolution methods.

At the outset, your litigation solicitor will initially want to talk to you about your obligations in respect of pre-action conduct, the nature of the dispute, and the background to the dispute. The latter includes what has caused the dispute, what losses have been suffered and any steps being taken to mitigate those losses. It helps at this early stage to give your solicitor a chronology of the relevant dates, making reference to the sequence of key events together with any relevant contemporaneous documents. This will enable your solicitor to understand the issues, determine the strengths and weaknesses of your case, and focus on developing a strategy that achieves the best possible outcome.

Depending on the nature of the dispute, your solicitor may advise you to write a letter of claim to the other side, or you may instruct your solicitor to do this on your behalf. A letter of claim is an important first step in the dispute resolution process, as it sets out details of your proposed claim, the remedy sought and what will happen if the other side ignores the letter (for example, that court proceedings may be commenced). Conversely, if you or your business are on the receiving end of a letter of claim or the threat of a legal claim, your solicitor might advise you to write a letter of response. The letter of response is a formal letter which outlines your business’ position in relation to the claim being advanced.

The pre-action rules set out in the CPR are there to assist the parties to resolve their dispute as early as possible, and to only commence court proceedings as a last resort. Therefore, it is important for parties to engage with the pre-action process, as a failure to do so (such as failing to send a formal letter of claim or a letter of response) may lead to sanctions in the form of costs penalties being made against the non-compliant party.

Instructing a barrister 

Depending on the nature of the legal claim, your commercial litigation solicitor might advise instructing a barrister, otherwise known as counsel. The major difference between a solicitor and a barrister is that a solicitor will conduct most of the administrative and procedural work, while a barrister will advise you on anything to do with court and how a court may view your case.

This process will likely involve a meeting with your barrister, known as a ‘conference with counsel’, and your solicitor will be present at that meeting. It is an opportunity for you and your solicitor to discuss the merits of the case, and to develop a strategy that is aligned to your aims and objectives. That strategy may also consider other methods of dispute resolution, such as negotiation or mediation.

With the assistance of a good litigation solicitor, many commercial disputes achieve settlement during the pre-action stage, long before a claim has been issued in court. Sometimes these cases settle through negotiation (by way of the parties making offers), and at other times through mediation. You can read more on our website about offers to settle and mediation.

Trial

If your dispute requires court proceedings and subsequently goes all the way to trial, your commercial litigation solicitor will be with you at every step of the process to provide expert commercial advice, ensure compliance with the procedural requirements, and to deploy their specialist legal expertise and commercial knowhow to the central legal arguments in dispute.

Your solicitor will also advise you in relation to disclosure, which is the important process of collating documents relevant to the dispute and making them available for inspection by the other party. Your solicitor will also assist in the preparation of witness statements, which are evidential documents detailing each witness’s honest account of the facts based on their recollection of events. Where expert evidence is required, it might be necessary to instruct an independent expert to give their impartial evidence on specific issues in dispute.

If you are the party bringing the claim, your litigation solicitor will produce a ‘bundle’, which is a file or several files containing the documents that will be referred to during the course of the court proceedings. This usually includes the statements of case (also known as the pleadings), court orders, witness statements, any experts’ reports, the parties’ disclosed documents, and any relevant correspondence.

During the trial, your solicitor will be with you and will be the point of contact day to day. They will be on hand to support you throughout the court proceedings and to liaise with the barrister on your behalf regarding any matters arising in the case.

Post-trial

Your solicitor will stay in touch when the judgment is handed down and will explain what the judgment means to you and your business. Your solicitor will also finalise matters including arguments in respect of legal costs and advise on any damages ordered to be paid by one party to the other.

Your solicitor’s support extends beyond the courtroom, ensuring that you fully understand and can effectively navigate the outcome of your case. This ongoing assistance can be vital in mitigating any negative impacts on your business, and in helping you move forward with clarity and confidence.