Litigation

Legal proceedings

Legal proceedings are sometimes necessary in the course of a business when attempts to resolve a dispute informally have proved unsuccessful.  Under such circumstances, a business owner is left with no alternative but to commence legal proceedings in order to enforce their rights.

Obviously this will involve a balancing act between the benefits that come with asserting your legal rights (financial and non-financial) and the costs (financial and non-financial).  A lawyer can assist you to decide on which way to go.

For both the party that is suing (known as the “plaintiff”) and the party that is being sued (known as the “defendant”), the main issues to consider will be fundamentally the same:

• What is the best jurisdiction (eg Courts or Queensland Civil & Administrative Tribunal);
• What is the probability that the plaintiff will succeed?
• Is there sufficient documentary and other evidence to substantiate the allegations?
• Are there any defences that would be available to the defendant?
• How long is the case expected to run for?
• How much will your legal costs be (i) pre-trial and (ii) post-trial?
• If you lose, how much of the other party’s legal costs will you be required to also pay?
• What alternate avenues remain available to settle the case in a cost-effective manner?
• Is my lawyer sufficiently experienced in the subject matter of the dispute?

The key to managing your legal risks and minimising costs is to ensure that you present your best case as early as possible so that the other party has a good opportunity to reconsider its position at an early stage, and to seriously consider an out-of-court settlement as a realistically viable alternative.

If a trial ultimately becomes necessary, the challenge then is to implement certain strategies to ensure, not only that you increase your prospects of winning, but also that you do so in a cost-effective manner (such as by maximising the amount that the other party will be required to pay you in damages, interest as well as legal costs).

Winthrop Mason Lawyers can assist you by:

• Advising on your prospects of successfully prosecuting (plaintiff) or defending (defendant) your case at trial, including the specific risks and challenges likely to be faced at trial;
• Advising you on your estimated financial exposure as well as the costs involved in litigating;
• Advising on a range of possible settlement options for your case;
• Advising you on appropriate strategies to maximise the probability of a favourable outcome (whether in an out-of-court settlement or at trial);
• Interviewing witnesses and preserving important evidence, including those held by third parties;
• Preparing your case for trial and briefing counsel if necessary;
• Representing you at trial and presenting submissions on your behalf.

There are no guarantees of winning at a trial, so it is important that the risks involved in litigation are appropriately managed.  We also have ways to ensure that your legal costs are contained so that litigation remains a viable option.  For a no-obligation initial consultation, go ahead and give us a call.

Relevant Videos

Settlement conference

Settlement conferences are simply a cost-effective avenues for disputing parties to get together to try to resolve their differences instead of going to a trial.

The parties may or may not already be involved in legal proceedings, although typically one party would have already instituted legal proceedings before a settlement conference is convened.  This does not have to be the case though, as the parties are free to call a settlement conference at any point in time.

Legal proceedings may have been instituted due to a perceived lack of options (eg. earlier attempts to negotiate have been unsuccessful), for strategic reasons (eg. to put pressure on the other party) or out of necessity (eg. there may be limitation periods which are due to expire).

Winthrop Mason Lawyers can assist you by:

• Advising on a range of alternative dispute resolution processes;
• Advising on your legal position on liability, risks, options and strategies;
• Advising on appropriate strategies for optimising settlement outcomes;
• Negotiating the resolution of the dispute at the settlement conference on your behalf;
• Taking certain steps to protect your interests in the event that  a trial is required;
• Preparing an appropriately worded Release, Discharge & Indemnity document;
• Monitoring the parties’ compliance with agreed settlement terms.

Paying for good quality advice can often save you a lot of money in the long run.  For a no-obligation initial consultation, go ahead and give us a call.

Directions conference

Directions conferences are very similar to a settlement conference, except that it is facilitated by the courts.  It can be a cost-effective avenue for disputing parties to get together to try to resolve their differences instead of going to a trial.

Another key difference between a settlement conference and a directions conference is that the focus of a directions conference need not be solely, or primarily, the settlement of the dispute.  It can, for example, just be an avenue for the parties to agree on narrowing the issues to be put to the judge at trial, or what documents are to be tendered as evidence, and so on.

A directions conference is generally facilitated by a Court Registrar or Deputy-Registrar, who has the power to make certain orders at the conference and may even rule a Judgment in favour of one party if the other does not show up.

Winthrop Mason Lawyers can assist you by:

• Advising on a range of alternative dispute resolution processes;
• Advising on your legal position on liability, risks, options and strategies;
• Advising on appropriate strategies for optimising settlement outcomes;
• Negotiating the resolution of the dispute at the compulsory conference on your behalf;
• Taking certain steps to protect your interests in the event that  a trial is required;
• Preparing an appropriately worded Release, Discharge & Indemnity document;
• Monitoring the parties’ compliance with agreed settlement terms.

Paying for good quality advice can often save you a lot of money in the long run.  For a no-obligation initial consultation, go ahead and give us a call.

Mediation

A mediation is simply a cost-effective avenue for disputing parties to get together to try to resolve their differences instead of going to a trial.  It is very similar to settlement conference except that an independent third party is involved to facilitate the settlement process.

The mediator is jointly appointed by both parties, and is generally a very senior, well-respected legal practitioner (typically a barrister of many years’ standing).  It is common practice for the two disputing parties to equally share the costs of a mediator, which can range anywhere between $2,000 to $12,000 for a one-day mediation.

The parties may or may not already be involved in legal proceedings, although typically one party would have already instituted legal proceedings before a mediation is convened.  This does not have to be the case though, as the parties are free to call a mediation at any point in time.

Legal proceedings may have just been instituted due to a perceived lack of options (eg. earlier attempts to negotiate have been unsuccessful), for strategic reasons (eg. to put pressure on the other party) or out of necessity (eg. there may be limitation periods which are due to expire).

Winthrop Mason Lawyers can assist you by:

• Advising on a range of alternative dispute resolution processes;
• Advising on your legal position on liability, risks, options and strategies;
• Advising on appropriate strategies for optimising settlement outcomes;
• Negotiating the resolution of the dispute on your behalf at the mediation;
• Taking certain steps to protect your interests in the event that a trial is required;
• Preparing an appropriately worded Release, Discharge & Indemnity document;
• Monitoring the parties’ compliance with agreed settlement terms.

Paying for good quality advice can often save you a lot of money in the long run.  For a no-obligation initial consultation, go ahead and give us a call.

Arbitration

An arbitration is an avenue for disputing parties to have their differences resolved without going to a trial.  It is very similar to mediation except that the independent third party actually makes a determination that is binding on both parties, instead of merely facilitating a resolution.

Due to the court-like function of an arbitrator, the nature and volume of work that goes with preparing for an arbitration can almost be the same as that for a trial.  It is therefore not a cheap process to go through – unlike  settlement conference or mediation – but it can still prove to be a cheaper option than a trial.

The arbitrator is jointly appointed by both parties, and is generally a very senior, well-respected legal practitioner (typically a barrister of many years’ standing or a retired judge).  It is common practice for the two disputing parties to equally share the costs of an arbitrator, which often ranges anywhere between $10,000 to $30,000 if not higher.

The parties may or may not already be involved in legal proceedings, although typically one party would have already instituted legal proceedings before an arbitration is proposed.  This does not have to be the case though, as the parties are technically free to call for an arbitration at any point in time.

Legal proceedings may have just been instituted due to a perceived lack of options (eg. earlier attempts to negotiate have been unsuccessful), for strategic reasons (eg. to put pressure on the other party) or out of necessity (eg. there may be limitation periods which are due to expire).

Winthrop Mason Lawyers can assist you by:

• Advising on a range of alternative dispute resolution processes;
• Advise on the suitability of arbitration for your particular dispute;
• Advising on your legal position on liability, risks, options and strategies;
• Advising on appropriate strategies for optimising settlement outcomes;
• Preparing your case for arbitration, and presenting submissions on your behalf;
• Taking certain steps to protect your interests in the event that a trial is required;
• Preparing an appropriately worded Release, Discharge & Indemnity document;
• Monitoring the parties’ compliance with agreed settlement terms.

Paying for good quality advice can often save you a lot of money in the long run.  For a no-obligation initial consultation, go ahead and give us a call.

Trials and other court hearings

Where a dispute is unable to be resolved at an alternative dispute resolution process (such as a settlement conference, directions conference or mediation), the parties will be forced to go to a trial.

The number of days that the parties will need to set aside for a trial will just depend on the complexity of the dispute between the parties, whether expert witnesses are required and the number of witnesses to subpoenaed to testify.  The legal costs you will have to pay your own lawyers (including barristers) will differ depending on the court involved:

• Magistrates Court – typically around $25,000 to $35,000.
• District Court – typically around $45,000 to $55,000.
• Supreme Court – typically around $55,000 to $85,000

Due to the significant legal costs involved in a trial, the parties will generally opt to settle their case even before going to a court hearing.  A trial should therefore be considered only as a last resort.

While the outcome of trials can be quite unpredictable, the key to maximising your prospects of success is preparation.  Have you got all your evidence ready?  Did you need to subpoena any documents held by third parties?  Are all your expert witnesses properly briefed?  Are all your lay witnesses sufficiently prepared?  Has your legal research been sufficiently thorough?  Has your barrister been fully apprised of all the key issues?

Winthrop Mason Lawyers can assist you by:

• Advising on your prospects of success on liability and quantum (award of compensation);
• Advising you on the likely costs involved in preparing for, and running, a trial;
• Undertaking all trial preparation work, including preparing a brief to a barrister;
• Issuing subpoenas to third parties, where necessary;
• Briefing expert witnesses;
• Briefing a barrister to appear at trial;
• Interviewing all factual witnesses;
• Undertaking legal research on any relevant or helpful case law to support your case;
• Attending trial on your behalf and preparing submissions as necessary.

For a no-obligation initial consultation, go ahead and give us a call.

Enforcement proceedings

Even if you win at a trial (ie. the court issues a Judgment in your favour), this does not necessarily mean that you will immediately get the money that is owed to you.  You will be required to enforce that Judgment through another set of legal processes, often referred to as “enforcement proceedings”.

Winthrop Mason Lawyers can assist you by:

• Advising on the viability of enforcing the Judgment against the losing party;
• Undertaking investigations into the asset and income position of the losing party;
• Serve the losing party with a Statement of Financial Position document;
• Attend an enforcement hearing on your behalf to interrogate the losing party;
• Prepare Warrants of Execution to be served on the losing party;
• Overseeing the liquidation process of the losing party’s substantial assets.

For a no-obligation initial consultation, go ahead and give us a call.