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Trying to avoid going to Court?

So why might you wish to avoid going to court? The court process is adversarial in nature and usually a legal case only gets to trial if offers, negotiations and discussions have broken down between lawyers.

3 coloured wooden figures; red, blue, green.

What is Alternative Dispute Resolution (ADR)?

The Civil Procedure Rules and specifically the Pre-Action Protocol requires that litigation be a last resort and parties are therefore bound to engage in alternative dispute resolution (ADR) so far as possible, so as to free up court time and save costs and encourage an “win-win” rather than a “win-lose” outcome. Anyone deliberately refusing or failing to engage in ADR can face financial consequences if a case ends up in court.

Typically, Claimants and Defendants will want to avoid a trial situation, not least of all because when a matter goes before a Judge, all bets are off, and it turns to a Judge to adjudicate over the evidence and form a legal judgment, usually finding for one party or the other. No one wants to be on the wrong side of a judgment, not least of all because of the work that has gone in to get a case to trial but also because the outcome can be devastating for either party to the court action.

Is litigation expensive?

The answer is yes and by the time of a trial most of the legal costs have been incurred and for Defendants seeking to settle cases cost effectively, they would usually look to try and settle cases long before they get to the court room so as to avoid extensive legal costs being incurred, in particular those associated with a trial which can be very high indeed. It is not uncommon for costs of £200k to be incurred in a 5-day trial involving multiple expert witnesses and senior legal counsel.

A well-pitched offer at an early stage by either party can place an opponent at increased risk of incurring legal costs that are later not recoverable if they fail to beat an offer at trial.

It is always a matter of commerciality and cost effectiveness as to whether you run the risk of going to trial or settle beforehand, particularly in the face of an offer to settle, and that decision will always be carefully considered.

At FT Chronic Pain Solicitors, we certainly do not shy away from going to trial if we feel there is real commercial benefit to our client in doing so, and if attempts to settle cases favourably and in a less formal setting have been unsuccessful. We have recently won a five-day trial in the High Court Royal Courts of Justice in a case involving a diagnosis of CRPS. This was a hard-fought battle where we were seeking a seven-figure sum for our client and the Defendants in that case refused to move on an early offer they had made, which we then beat at trial.

What are Joint Settlement Meetings (JSM)?

Typically, in an effort to bring about favourable settlements, in high value cases we will encourage a joint settlement meeting (JSM) between the parties/their representatives. This is an informal ‘without prejudice’ process, i.e., cannot be referred to in the court proceedings. Usually, a JSM takes place once both parties’ evidence has crystallised such that the bulk of the arguments and expert evidence can be laid bare in an informal meeting between opposing barristers/ counsel. Each legal team use this process to test the strength of their evidence against their opponents.

Usually, a JSM starts with the Defendant making the first offer. The parties to the proceedings remain in separate rooms with only counsel meeting to put offers forward and to argue points on behalf of their respective clients. It is a prerequisite that all parties entering into the process of a JSM do so in the spirit of genuinely attempting to narrow the issues in dispute and ultimately to attempt to agree settlement of a case. Most JSMs are successful as both sides will look to concede good arguments made, which usually results in movement from either side in an attempt to meet with an appropriate figure in settlement.

What is Mediation?

As well as JSMs, Mediation is sometimes appropriate but rarely used in personal injury cases, although it is growing in popularity. Mediation usually conducted in a public room. The parties will outline the nature of their dispute to the mediator in the presence of the other side, following which the parties will separate into private rooms and the mediator will speak to each in an effort to try to find a solution to the dispute. If the parties agree a settlement, the settlement terms will be written down and are binding. As in a JSM, you can walk away at any point. It is much quicker and cheaper than litigation and it is a confidential process such that anything raised in the mediation cannot be referred to in subsequent court proceedings.

What is Arbitration?

Arbitration is another form of alternative dispute resolution, again quicker and cheaper than litigation and the Arbitrator, similarly to a Judge, makes a decision based on their review of the evidence and upon hearing submissions from the parties. The decision is binding and enforceable in the courts but has very few rights of appeal and requires costly arbitrator and lawyers to be involved. Typically, this is not something we have seen used in personal injury work.

Contact FT Chronic Pain Solicitors today

FT Chronic Pain Solicitors is a law firm dedicated to representing those who suffer from chronic pain as a result of an accident that was the fault of someone else. Our two partners, Anne Felmingham and Paul Turner, have decades of experience in this area of the law, and have over the years, recovered millions of pounds in damages for their clients. We offer sound legal advice, but also work at facilitating information, treatment, and support for those we represent.

If you suffer from chronic pain caused by the negligence of others, we would be happy to offer a free initial consultation. We are a modern law firm which is not constrained by bricks and mortar, so we prefer electronic communication in relation to documents. Contact us today by email, or give us a call to see how we can help you with your personal injury claim.


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