A dispute rarely starts with court proceedings.
It usually starts with something much smaller.
A payment is not made. A contract is interpreted differently. A business partner stops cooperating. Someone makes an allegation that cannot simply be ignored.
Then correspondence becomes more formal, positions harden and what appeared to be a commercial problem starts becoming a legal one.
At that point, the question is no longer simply “Who is right?”
The more useful question may be:
What is the best way out of this dispute?
Our civil litigation and dispute resolution lawyers advise businesses and individuals on disputes in England and Wales, including complex and cross-border matters. The objective is not litigation for its own sake. It is to understand the legal and commercial position early and identify the strategy most likely to produce an effective outcome.
1. What Is Civil Litigation?
Civil litigation is the process through which non-criminal disputes can be determined by the courts.
For businesses, disputes may arise from contracts, unpaid debts, failed transactions, professional relationships, shareholders, partnerships, property, representations or other commercial arrangements.
For individuals, civil litigation can involve contractual disputes, financial claims, property disputes and claims arising from dealings with businesses or other individuals.
Depending on the nature, complexity and value of the claim, proceedings may be dealt with in the County Court or the High Court.
But issuing proceedings is only one part of litigation.
A well-managed dispute starts much earlier.
2. The Decisions That Matter Before Proceedings Begin
One of the most expensive mistakes in litigation can be starting with the wrong question.
Clients understandably ask:
“Can I sue?”
That matters, but it is rarely enough.
Before substantial costs are incurred, several other questions should normally be considered.
What actually happened?
The chronology needs to be established from documents and evidence rather than memory alone.
What is the legal basis of the claim or defence?
A sense of unfairness does not necessarily create a legal cause of action. The facts need to be connected to an identifiable legal claim or defence.
What evidence exists?
Contracts, emails, WhatsApp messages, invoices, bank records, meeting notes and witness evidence can fundamentally change the strength of a case.
What has actually been lost?
Even where liability can be established, a claimant will normally need to establish the loss for which compensation is sought.
Can the opponent pay?
A judgment against a company with no recoverable assets may have considerably less commercial value than a negotiated payment today.
What will the dispute cost?
Legal costs, management time, experts, counsel and the disruption caused by litigation should form part of the analysis.
This is why litigation strategy should begin before proceedings, not after them.
3. What Happens Before a Civil Claim Is Issued?
Going immediately to court is not always the first step.
Depending on the type of dispute, a specific Pre-Action Protocol may apply. Where there is no specific protocol, the Practice Direction on Pre-Action Conduct and Protocols provides the general framework.
The pre-action stage may involve:
- analysing the evidence and relevant contracts;
- identifying potential claims and defences;
- calculating the value of the claim;
- sending or responding to a Letter of Claim;
- exchanging relevant information and documents;
- considering settlement proposals; and
- considering mediation or another form of alternative dispute resolution.
Pre-action correspondence should not simply be treated as an administrative formality.
Handled properly, it can define the dispute, narrow the issues, reveal weaknesses in the opposing case and sometimes resolve the matter without proceedings.
The parties’ conduct before proceedings can also become relevant later, including when the court considers case management and costs.
4. Starting or Defending Court Proceedings
If the dispute cannot be resolved, proceedings may become necessary.
For a claimant, this means more than filing a claim and waiting for trial.
The claim needs to be properly formulated, the correct defendants identified, the appropriate court selected and the remedy sought clearly established.
For a defendant, the early stages can be equally important.
There may be questions about:
- whether the claim has been properly pleaded;
- jurisdiction;
- limitation;
- service;
- the appropriate forum;
- whether part or all of the claim should be struck out;
- whether summary judgment may be appropriate;
- whether there is a counterclaim; or
- whether an application needs to be made at an early stage.
Once proceedings are underway, the court actively manages the case under the Civil Procedure Rules.
The strategy adopted at the beginning can influence the entire litigation.
5. Evidence and Disclosure: What Do the Documents Actually Say?
Many disputes look different once the documents are assembled.
A confident recollection of a conversation may be contradicted by an email written the following morning.
A contractual clause that initially appears decisive may need to be considered alongside amendments, subsequent correspondence or other relevant evidence.
That is why evidence should be considered from the beginning.
Depending on the dispute, potentially relevant material might include:
- contracts and amendments;
- emails;
- WhatsApp and other messages;
- invoices and payment records;
- bank records;
- board papers and minutes;
- photographs and recordings;
- internal documents; and
- other electronic records.
Disclosure is not simply about producing documents that help your case. Depending on the applicable disclosure regime and the court’s orders, documents adverse to a party’s position may also have to be disclosed.
This is one reason why relevant evidence should be preserved as soon as a serious dispute is anticipated.
What exists today may become the evidence on which the dispute is decided years later.
6. Settlement, Mediation and Part 36 Offers
Starting litigation does not mean settlement has failed.
In many cases, proceedings change the conditions under which settlement negotiations take place.
Once the parties understand the evidence, legal arguments, costs and risks more clearly, a commercial resolution may become possible.
Settlement can be explored through direct negotiation, mediation and formal settlement offers.
A party may also consider making a Part 36 offer where appropriate. Part 36 provides a specific procedural framework for settlement offers and can have important costs consequences.
The important point is that settlement and litigation are not necessarily competing strategies.
Sometimes the strongest settlement position is created by being properly prepared to litigate.
The objective should not necessarily be to take every dispute to trial.
It should be to obtain the best available outcome.
7. How Much Does Civil Litigation Cost?
Litigation has to make economic sense.
That does not mean every decision should be based solely on the amount claimed. Some disputes have wider commercial, reputational or strategic importance.
But costs should be considered from the outset.
Depending on the case, expenditure may include:
- solicitors’ fees;
- barristers’ or King’s Counsel’s fees;
- court fees;
- expert fees; and
- other disbursements.
There is also litigation risk.
Even a party with a strong case cannot safely assume that every argument will succeed or that every pound spent will ultimately be recovered from the opponent.
A sensible litigation strategy therefore continually asks:
“Is the next step proportionate to what we are trying to achieve?”
Sometimes the answer will be to fight.
Sometimes it will be to negotiate.
Knowing the difference can be one of the most important parts of litigation strategy.
8. Winning Is Not Always the End: Can the Judgment Be Enforced?
A court judgment and money in the bank are not the same thing.
That makes enforcement an issue worth considering before proceedings are commenced, particularly where there are concerns about the opponent’s financial position or the location of assets.
Questions may include:
Where are the defendant’s assets?
Are they held personally, through companies or in other jurisdictions?
Is there a realistic prospect of recovering the judgment?
Is there a genuine concern that assets may be moved or dissipated?
The answers can affect litigation strategy from the outset.
For some disputes, recoverability can be almost as important as liability.
There may be little commercial value in spending substantial sums obtaining a judgment that cannot realistically be enforced.
9. Cross-Border Civil Litigation
Civil litigation can become considerably more complicated when a dispute crosses national borders.
A contract might have been signed in one country, performed in another and governed by English law. The defendant, witnesses, documents or relevant assets may be overseas.
This can raise questions concerning:
- jurisdiction;
- the appropriate forum;
- service outside the jurisdiction;
- governing law;
- evidence located abroad; and
- recognition and enforcement of judgments.
These issues can sometimes determine where and how a dispute should be pursued before the substantive merits are even considered.
LawLex Solicitors acts from London on UK and cross-border disputes and, where appropriate, works with appropriately qualified lawyers in other jurisdictions.
Where the parties have agreed to resolve their dispute by arbitration rather than through the courts, our international arbitration lawyers can advise on the appropriate approach.
10. When Should You Speak to a Civil Litigation Solicitor?
Preferably before the dispute has become difficult to control.
Early advice can be particularly important where:
- you have received a Letter of Claim or court documents;
- a substantial payment is being withheld;
- a contractual relationship is breaking down;
- important evidence may disappear;
- there may be a limitation issue;
- there is concern about the movement of assets;
- the opponent is based overseas;
- settlement negotiations have stalled; or
- the dispute could materially affect the business.
There is an important practical reason for acting early.
The options available at the beginning of a dispute may not still be available several months later.
Limitation periods are particularly important. Pre-action negotiations do not generally stop a statutory limitation period from running simply because the parties are corresponding or attempting to settle.
11. How LawLex Solicitors Can Help
LawLex Solicitors advises claimants and defendants in civil and commercial disputes.
Depending on the circumstances, our work may include:
- early case assessment and litigation strategy;
- pre-action correspondence;
- Letters of Claim and responses;
- settlement negotiations;
- mediation and alternative dispute resolution;
- issuing and defending court proceedings;
- interim applications;
- evidence and disclosure;
- working with barristers, King’s Counsel and experts;
- trial preparation; and
- enforcement.
For disputes arising from business relationships and contracts, our commercial lawyers can also advise on the underlying contractual and commercial issues.
For international disputes, we can coordinate with appropriately qualified lawyers in other jurisdictions where required.
The starting point is usually straightforward:
What has happened?
What outcome do you want?
And what is the most effective route to get there?
12. Speak to a Civil Litigation Solicitor
If a dispute is developing, you have received a formal claim, or negotiations have reached an impasse, early advice may help preserve your options and avoid unnecessary cost.
Speak to our civil litigation solicitors in London about your dispute.
Frequently Asked Questions About Civil Litigation
How long does civil litigation take in the UK?
There is no single timeframe. It depends on the nature and complexity of the dispute, the court, the issues requiring determination, the evidence, applications made during proceedings and whether the parties reach settlement before trial.
Do civil disputes have to go to court?
No. Disputes may be resolved through negotiation, mediation or other forms of alternative dispute resolution. Parties are expected to consider settlement and ADR, and settlement can remain possible even after proceedings have started.
Can I recover my legal costs if I win?
Potentially, but costs recovery depends on the type of proceedings, the circumstances and the court’s orders. A successful party should not assume that every pound spent on litigation will be recovered from the opponent.
What should I do if I receive a Letter of Claim?
Do not ignore it. Check any deadline, preserve relevant documents and consider obtaining legal advice promptly. The appropriate response will depend on the allegations, evidence and applicable pre-action procedure.
What documents should I keep for a civil dispute?
Preserve potentially relevant material, including contracts, amendments, emails, messages, invoices, financial records and other documents connected with the dispute. Potentially relevant material should not simply be deleted because it appears unhelpful to your position.
Can LawLex handle international civil disputes?
LawLex Solicitors advises on cross-border disputes from London and can work with appropriately qualified lawyers in other jurisdictions where local-law advice or action is required.
