Jodie Thomson: Good morning, everybody. Welcome to our webinar as part of our in-house counsel series, Manage Disputes, Risk, and Stakeholders Effectively.
My name is Jodie Thomson, and I’m a practice leader in LegalVision’s disputes team.
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So, the agenda for today’s topics.
We’re going to be talking about, generally, managing commercial disputes — what they look like, where they can come up.
In particular, we’re going to talk about the true costs and the risks of disputes from an early stage, and then if they escalate, if they end up in court, what some of that collateral damage can be to a business.
Going to give some early prevention tips to try to either avoid disputes entirely, or get rid of them very, very quickly.
Some guidance on the first steps to take when things go wrong to minimise those risks and costs.
Some communication essentials — something that we find in-house counsel clients are often asking for advice about, so giving some guidance on that today.
Keeping disputes out of court — number one priority for us and clients in these matters. Some key takeaways, and as I said, at the end we’ll have time for some Q&A, so feel free to pop any questions as you go, and I’ll get to those at the end.
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So, the first introductory slide is talking about managing commercial disputes.
They’re an unfortunate, unpleasant, and inevitable part of doing business. They just arise in the transactions and arrangements that are part of doing business. In our experience, dealing with commercial disputes day in and day out, we often find that at the heart of a commercial dispute — even if it’s dealing with very dense contracts and documents and very big companies — there’s often a couple of challenging personalities. Perhaps two people who don’t like each other; perhaps some personalities who like to take an aggressive and adversarial approach to these types of things. But yes, it’s often a very big part of managing the disputes. Needless to say, there are plenty of them in all sorts of climates.
I’m giving a quite high-level overview today with the limited time that we’ve got, but I wanted to talk about the various stages that we see clients go through, and that we talk to our in-house counsel clients about. The focus is very much always — and I’ll come back to this over and over again — how do we get out of this and make it stop? Rather than, how do we win? And that doesn’t mean that we don’t take a firm approach, and we’re obviously all acting in the best interests, but if any of you have worked in litigation or been involved in court proceedings, you’ll know where we’re coming from when we talk about really taking all steps to stay out of court.
Of course, for in-house counsel, it’s important to understand the cost and the risk to your business. As I said, the extent of collateral damage that can occur — to the business, to staff, to stakeholders.
Disputes can pop up in every corner of a business that you may not anticipate. Parties generally don’t anticipate disputes. It’s something that can often take people by surprise.
There are the standard contract disputes — service or supply contracts, with customers, with clients. There are disputes with employees, with contractors. There are director-shareholder partnership disputes, which we see a lot of in big and small companies. There are lease disputes — every business is occupying a property, and there can be all sorts of disputes with a landlord, with a sublease, with a licensee.
We see loan disputes, and credit application disputes, and business sale disputes, and there are all sorts of things that can go wrong, that people will find to have a fight about when there’s a business sale. That’s just an example of the range and breadth and the places that disputes can come from.
It’s really essential in your roles to have measures in place to prevent disputes as much as possible, to act fast and early when they start. And as we’ll largely be talking about today, to understand the key risks in managing a dispute. And I think one of the big challenges that we see when working with in-house counsel in particular — but really all our clients in commercial disputes — is understanding the importance of being commercial when it comes to resolving a dispute and making it go away. It’s not always going to be about winning or losing, as I said, or not necessarily about what is the fair, just, or correct legal outcome.
Sometimes some of these disputes quite literally need some money thrown at them to go away, and there can be very sound commercial reasons for doing that.
The next slide, I’m just going to talk about the true costs of disputes. Now, any of you who’ve been involved in litigation or had to brief external legal services — or if you’ve worked in private practice in litigation — will understand the dollar value that disputes can cost a business. Just legal costs, if nothing else.
Most solicitors, like us private solicitors, work on an hourly rate basis for disputes. The reason for that is it’s a very uncertain and unpredictable territory. We’re not in control of how the other party’s going to act. It’s very difficult to predict how long something’s going to take to resolve, and how quickly — or not — what might be involved. So it can be extremely costly. Even in the pre-litigation stage, for example, if something is not even anywhere near going to court. If it’s lawyers writing long letters to each other, and even if it’s letters being drafted from your office, directly, perhaps with or without other legal assistance, it can be very, very time-consuming.
Disputes can be very lengthy. Again, you’ll know if you’ve been to court — things don’t get knocked over in a couple of weeks. It takes years and years. We often see 6 to 12 months in pre-litigation before parties get to court. Maybe there’s a mediation in that time frame. Once they do get to court, it’s a year or two if it’s going to go to a full hearing. So a significant amount of time for costs to be incurred, and for eyeballs to be taken away from doing business, and all of that has an ongoing cost flow.
For a matter that does make it to court, even if it’s just the early stages before the parties reach a resolution — which we do often see — costs are in the tens of thousands of dollars. To go to a final hearing, costs are going to be in the hundreds of thousands of dollars. And there is no guarantee of getting all of those costs back if you win.
Even if you are successful and get a costs order, you can still be out of pocket. We often have discussions with clients — clients who want to get on the front foot in a dispute and be aggressive, and try and put a lot of pressure on the other side to manoeuvre a commercial situation, which is all very important strategy and part of what we consider. But there’s a really big risk in being involved in court, and that risk is essentially costs. If you start a court proceeding and then you want to back out because it’s beginning to look too expensive, you can risk a costs order, even if you’ve only issued a statement of claim and got a short way along the line. That’s something that we experience quite a lot. So, just being in court in any way — whether you start it or whether you’re in as a defendant — can be very costly and risky.
In terms of costs, we also talk about the time — the eyeballs that aren’t focused on doing business. And that’s you, and that’s your office, but it’s all the other business people and employees who might be required to help you work out what’s going on in a dispute. There’s often a lot of detective work and digging back through files and correspondence and documents to work out what’s gone on and put a story together. Management time can be 100-plus hours diverted from running the business. And again, if lawyers are involved, you’ve got legal fees alongside that. Again, private practice disputes lawyers, like us — there’s a pretty standard way to charge. It’s an hourly rate basis. It’s usually fees paid up front. And recovery can be uncertain.
The next slide, talking about key risks. And this is something that I think is really important for in-house counsel, and any commercial party involved in a dispute, to realise — and that’s why we will always keep coming back to the risks. We often talk about a balancing scale of risks when we’re looking at options to move forward.
Often, options to move forward towards court come with so many risks, it may be worth, for example, throwing some money at it.
An escalating dispute comes with risks well beyond legal fees. For example, there can be potential reputational and brand damage to a business. Public companies that need to make announcements about any litigation, or in some cases significant disputes, can have damage to their shareholdings. There can be commercial relationships that can be damaged via a dispute — it might be a party that you really need for the business, in a number of different ways outside this particular dispute.
If there’s a claim against your company, and perhaps it hasn’t been addressed quickly or properly, and the court makes a judgment by default — or after a hearing if it goes all the way to a hearing — just the existence of a judgment, without having to pay any monetary figure, can be very damaging to a company’s credit rating. And what we often see, even with smaller debts, is that statements of claim or statutory demands can slip through and not be jumped on or identified quickly by people in the business who aren’t lawyers and may not realise the timing and strict timeframes involved.
And if there is a judgment — even a small amount — it can affect a company’s credit rating. For example, even a small debt that then gets paid: the judgment still stands, and it can be a whole legal process in itself to have a judgment removed from the court record. The other party has to agree to it. I’ve had matters where banks had obtained judgments against various debtors — people who hadn’t paid, who had defaulted on loans. And I forget which bank it was, it was definitely one of the bigger banks. They just had a standard policy, which was: even if parties pay their debts, we’re not removing judgments, because we need that to be part of the message that goes out to the marketplace, that if you default on debts, there’s an ongoing penalty. So, that’s a very big risk that we do talk to clients a lot about when it comes to deadlines.
Of course, statutory demands — as I mentioned — there’s a risk of the company being wound up. People use statutory demands for debt recovery. They’re not meant to be used for that, but of course they do. So, for even quite small amounts — anything over $4,000 — it’s a very, very heavy stick with a very tight deadline. The statutory demand form — most of you are probably very familiar with them — but they can be easily missed by non-lawyers. They’re short, they don’t look as scary as a court document with stamps all over it, and they need to be taken very, very seriously, very quickly.
And of course, the other risks are opportunity costs. Like I said, eyeballs off the business. There may be other deals delayed, growth stalled — some disputes can take up a lot of resources from a business just to manage and respond and work out what’s going on. There can be staff morale and distraction if there’s a lot of stress and tension and aggression. Again, there are always human beings on either end of these disputes, and people who — it might not be their dispute personally, but their job is on the line, they’re the person on the line — and emotions can be very, very high, which can be very stressful for staff involved.
So, to the next slide of early prevention tips. What can you do? What can companies do to minimise the chance of disputes coming up? Well, we can’t do that 100%, but there are some things that you can do that will just make it harder for disputes to arise.
As a starting point, be very familiar with your company’s business documents — with contracts, with agreements, with shareholders’ agreements, with constitutions, to the extent that there might be subsidiary companies. And all of this is going to be part of your business as usual, but I guess we would say: have a disputes alert. Watch out, in terms of reviewing these types of documents.
For example, the most common commercial dispute that we deal with — and that we have clients wanting advice about, both in-house counsel clients and our regular commercial clients — is termination of agreements. Something’s gone wrong in the agreement; how can I get out early? The other side wants to get out early. Someone’s not doing what they’re supposed to do. And all sorts of issues around fixed-term agreements. We’re surprised how often parties don’t really understand the risks of getting things wrong around contracts like that, and also the potential damages that can flow from that.
So in particular, it’s being alert to termination dates, renewal option dates, lease renewal option dates. Those types of clauses have very tight windows. Set calendar alerts and reminders for those dates. So for a lease option renewal, for example, it’s usually a 3–6 month window before the lease term ends. It can be quite hard, looking at a lease, to translate that back to the exact time frame, or the exact dates that you need to know. But those dates can be really important, and they can have a very big impact on a business if it had been expecting to renew that lease and not have to go through the cost and risk of upending a particular premises and moving everyone somewhere else if need be.
In particular, we would warn people to be alert to the risk of repudiating contracts. I know you all know what that means, but next to termination questions — or along with termination questions — it’s one of the biggest contract dispute issues that we find, or it’s an element that comes up. People unwittingly or unknowingly, in an email, sometimes in a text message, can communicate something to the other party that could be construed as repudiating, and suddenly you’ve got a contract terminated and damages claims.
I’ll talk a bit more about some tips around communicating, and that’s part of it, but being alert to these types of concerns, being familiar with your documents, knowing what the timeframes are, having some extra dates built into your calendar — it’s what we do with court dates in our team. We’ll send a calendar invite. And look, this is really basic stuff, but it has saved many situations, many times. It’s really, really important. We’ll invite lots of people to that calendar invite where there’s a hard court deadline, for example, and this might be the same with a commercial or a contract deadline that needs to be on your radar. And set reminders a week or a month earlier to make sure it’s not missed, because it can be impossible to recoup or recover from a missed deadline or a missed opportunity in that way.
We would certainly recommend companies have company policies in place, and updated where needed. For example, privacy and data breach policies — it’s an area of work and disputes that falls under a disputes umbrella that we look after, and we’re seeing a lot of it at the moment. And our in-house counsel clients who have good policies in place move very seamlessly and comfortably through these kinds of disputes and potential crises when they’ve got that done beforehand.
We’d always recommend getting external advice if you need it before entering significant agreements — whether it’s a lease, there might be some specific property advice that you might not have in your team, a supply contract, a loan arrangement. We’re often surprised when clients come to us with a dispute that’s underway with a contract that we’ve not drafted, not reviewed, or had anything to do with — and possibly our client hadn’t had that reviewed before it was entered — and how one-sided they can be. And look, sometimes there’s not an opportunity to negotiate before you’re entering a large contract. Often there is, and if there is an opportunity, then it’s great to get that advice and try and improve those terms. If there’s not, then it’s good to be really mindful of the risks if a dispute arises in a contract like that.
So, the next slide: the first steps to take when things go wrong.
And this is a bit of a continuation of what I was just talking about, but certainly an area where we see things can get really — can get much worse for clients if they’re not taking careful and correct steps very quickly when a dispute first arises. Again, get external advice early if you need it. You might need specific disputes or litigation advice. It might be particular to the area of law — again, using the example of a lease or a property dispute. But it’s really good to have a strong understanding of your legal position.
Sometimes we see clients well-progressed in a dispute before they come to us, on a legal basis that turns out to be wrong. And it just makes it much harder to try and rework the wheel when we’re engaged, to say, well, actually, you didn’t have a right to do that, and so we need to go back and take a different approach.
There can be really serious ramifications if you do take a wrong step early. For example, we’ve got one matter at the moment in the County Court in Victoria. Our client is a reasonably large telecommunications provider. It’s a dispute with their offshore data services company, and that company seriously breached the contract. And our client’s in-house counsel, or their legal team, at the time should have issued a breach notice and taken steps to terminate that contract in accordance with the contract terms for breach. But they didn’t do that. They waited a bit. And then they followed the process in the contract to terminate for convenience, but they had to give three months’ notice. But they decided that because of the breach, they wouldn’t pay those three-month outstanding fees. Sure enough, that other company has issued legal proceedings against our client. Now the contract’s terminated, but it’s been very, very difficult for us to mount a defence and a cross-claim because of the way our client’s legal team handled it. If they’d come to us earlier, we would have guided them through a different process, which would have put them in a very, very different position than they’re in now. We’re very much on the back foot, and they shouldn’t be on the back foot. They didn’t do anything wrong to start with — so it’s just a really good example.
It’s often really important to contact the insurers early, if appropriate or relevant. Often they’ll have their own legal panel or their own legal team to step in, and can provide great assistance. It’s really worth making those enquiries as early as possible.
In this early stage, if things are starting to go wrong, keep notes, keep records. Again, that sounds obvious — as lawyers, we’re conditioned to take file notes, and ChatGPT is making that a lot easier these days. But it’s extremely difficult to go back and work out what’s going on and put together evidence when needed — with dates and details and different phone calls and meetings — so keep that organised from the start; it makes things easier.
The other thing that we would say, and this is part of your prevention as well, is check your contracts — including your lease — for dispute resolution provisions. We’re also surprised how often clients, including legal counsel and legal teams, don’t really appreciate how important those clauses are, but how helpful they can be. They’re really important because they’re a very hard and fast logjam to stop parties rushing off to court. But they can also provide some really helpful guidance for parties to follow a contractual process when there’s a dispute. They just help keep a lid on things, stop them escalating, keep emotions in check, and kind of guide parties down a path of trying to resolve things in a sensible way, rather than getting too hot under the collar.
Dispute resolution clauses have all sorts of different terms, but be familiar with them, know what they are, and be ready to follow that if you need to. We often see clients kind of jump into a dispute — often being quite aggressive with the other party in terms of responding to a claim or making a claim — and not following a dispute resolution process, which could get them there more calmly.
Some of the communication essentials I wanted to cover quickly, because again, it’s something we see coming up a lot with in-house counsel, and we see some missteps that can make things worse.
If you are communicating with the other side, be cautious about whether or not that should be an open correspondence — something that can be considered in court — or without prejudice, or a combination of both. Strategically, we’ll often mix both, depending on what’s appropriate. Consider what communications may be privileged, noting your in-house counsel role.
Imagine every email, letter, and text that you’ve sent to somebody in this dispute being attached to an affidavit in court proceedings, and draft accordingly. That’s a guiding principle that we use when we’re managing matters, and I’ve found it very helpful in making sure I triple-proof-read anything that goes out.
Always reserve rights. And one of the main things that’s really, really important in any communication — particularly communication that is not marked without prejudice — is being careful to avoid waivers and admissions when making statements about the dispute in writing.
I just wanted to talk briefly about the next slide: keeping disputes out of court. Like I mentioned, look, it’s never in my interest as a disputes lawyer to talk about keeping things out of court. We love going to court — it’s the fun part of the job. But in this type of matter, the only parties who win by going to court are the disputes lawyers. It is best for any party in a dispute to stay out of court.
The best way to do that is to take a very good faith approach from the beginning. Communicate and negotiate. Provide information if requested. We often see parties taking a very obstructive, protective approach to information. And of course, when it comes to confidential and commercially sensitive information, that’s important. But it’s not going to help resolve a dispute, and many times that information should be provided.
Watch deadlines in letters or demands. Diarise those deadlines, because if a party issues a letter of demand or some sort of contractual demand and you don’t meet or respond by that deadline, they may go to court straight away.
Keep emotions neutral. Avoid inflammatory language when communicating with the other party. Easier said than done, but it’s something that we see fuels disputes. Again, big companies, very complex contractual matters — there’s usually real human beings on either end of this, and people are human and will respond accordingly. It doesn’t help.
Use external lawyers; use other sounding boards in your business.
A couple of key takeaways, because that’s the end of the main part of the webinar today. As I said, it’s a high-level approach, really focused on some elements that we see come up a lot with our in-house counsel clients and our commercial clients generally. And some things that we see people get wrong — I’m hoping I’ve shared a few tips today with you to help avoid that.
Always aim to resolve disputes as quickly as possible, to avoid extra costs and risks. There are lots of extra costs and risks.
Be commercial. It’s not about winning or losing. And from your perspective, it might be that your main job is to try and persuade other parties in your business to be commercial, and to understand those risks and the importance of getting out of a dispute as quickly as possible.
Get specialist legal litigation advice, and potentially counsel advice if needed for more complex matters. There are some strategic approaches and communication approaches that we can assist with that can limit the damage and move you towards a resolution as quickly as possible.
And on that basis, be very careful and cautious with any written communications.
That’s the end of the formal webinar today. There’s a free download — our General Counsel Toolkit — in the Resources tab, or you can scan the QR code and access that.
You might also find our next webinar helpful. It’s on the 6th of May at 11am, and it’s on ESG failures — the risks boards cannot ignore.
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Now, I’m going to answer some questions shortly. But you’ll also see a pop-up question on your screens, and we’d appreciate it if you could answer that while I’m getting to some questions for you.
Now, let me just have a check and see if we’ve got some live questions coming along.
Okay. Feel free to add any more while I’m talking; I’ll do my best to get through them.
Q&A
Alright, first one here: what’s the best strategy to avoid disputes with stakeholders who don’t collaborate?
That’s something that we do see a lot. Often when there’s a dispute — and usually the first stage in a dispute, once we’re engaged, is to send a letter to the other side. It’s usually either a letter of demand or a letter of response. And we always say to clients: that first letter is really important to get information about how the other side’s going to respond. Sometimes that response is radio silence and absolutely nothing. That’s okay — that gives us information about what to do next. And this is where it can be really helpful to get litigation advice, because at each stage we’re saying to clients: okay, this is what’s happened, these are your options. They’re not all good options, but they’re the only options that are available at the moment — because it might be to do nothing. Well, that’s not a good option, because you’re not going to get the money that you’re owed, or you’re at risk of a claim from the other side.
The difficult part is, you can’t force the other party to behave the way that you want. We can’t force them to respond to a letter, we can’t force them to attend mediation or a settlement conference, or to generally be sensible about resolving a dispute. So, what we would recommend in that instance is to work carefully through all the stages that you can. And it might involve everything from a telephone call, polite letters, offers of mediation, offers of informal settlement conferences — and if you do have legal advice, sometimes lawyers talking to lawyers can be immensely helpful to move a dispute forward. But at the end of the day, if people aren’t prepared to collaborate, then you just have to press on with the legal options, which in a worst-case scenario might be court.
Another question I’ve got here: can you claim legal costs that you’ve incurred before litigation?
So, usually, costs orders that might follow from a court proceeding — ordered by the court if one party wins or loses — usually start with the costs from when those court proceedings started. But in many other cases, you can claim your costs before that. It’s a very common question that we get asked by clients.
For example, often there’s an ability to claim costs contractually. So, specifically, many contracts will include default provisions — if payments aren’t made, for example — that you can claim all legal costs, including debt recovery and legal costs. So that’s a very specific entitlement. In other cases, you can claim pre-court legal costs as part of your damages. And in some cases — and I found this out the hard way after having a matter go through cost assessment — cost assessors will allow certain pre-litigation costs, particularly if the parties are trying to resolve the dispute before having to go to court.
So again, you don’t want to have to incur too many costs in any dispute, but pre-litigation costs can be claimed in certain circumstances.
I’ve got a good question here, and this was a great question about the jurisdiction of certain contracts where you’ve got an international party overseas. And the question says: between the legal systems — for example, Singapore and Myanmar — how can I resolve a dispute?
It’s dependent on the contract based on governing law. So, if you have a contract with an overseas party, usually the contract will specify the jurisdiction that covers the contract, and you’re pretty much stuck with that in most cases. In some cases, you can try and make arguments that the matter should be determined in Australia, but those are usually pretty limited options. Depending on how detailed that contract is, some of them might include very detailed dispute provisions that specify a seat of arbitration. I’ve got one at the moment where our client has a contract with a company based in China and they’re chasing money, and I think they’re going to have a very hard time. In this case, it’s a warranty term, so the warranty terms are very specific about jurisdiction in China, and any dispute must go through a particular arbitration body based in Hong Kong, and based on Chinese law. So, very hard to get out of that. Follow the contract is the answer.
Another question here: how to update an offer or proposal of intention in a negotiation stage. For example, an email sent saying that we agree to consider terms in a new contract, but it turns out there might be some other issues in that. What’s the best way to communicate this with the other side?
Look, sometimes when matters are a little bit convoluted like that, it can be best — and to me, that sounds like something that could be really helped by having an initial phone call. Sometimes, as I said, we do that lawyer to lawyer. It can depend on how amenable the other side is to that communication. You know pretty quickly if they’re not going to help. If I’m calling the solicitor on the other side, it would usually be on the basis of saying: “Jodie Thomson from LegalVision, this is the dispute. Would you be happy to have a without prejudice conversation about this? I just wanted to share some information, see if we can move our clients forward on this.” And you’ve got that without prejudice umbrella to be comfortable about talking through settlement options. And in that instance, you might talk through some of the different options and what you would prefer, and find out what the other party’s position is, before you actually go to the point of amending documents or putting something in writing.
Another question here: what is a business’s legal obligation when it comes to repair disputes in regional areas? If a customer refuses to bring a vehicle or piece of equipment to the dealer, is that dealer obliged to repair in the field at a cost?
Well, the answer here will very much be in the contract terms. I would be looking at exactly what the terms are. It might be in a purchase order, it might be in an invoice. It might be implied by the intention of the parties. There might be some very practical arguments, and this is where — as I’m sure you find in giving advice to your businesses generally — how often as lawyers we have to start every sentence by saying, “it depends”?
Because it does depend. There’s often — and I’m often saying to clients — there’s not a black and white answer here. There are some arguments we can make, and in a situation like that, I would be wanting to assess all of the circumstances, find out if there are any contractual terms, look at what the most logical, commercial, fair, and reasonable position is in terms of who does the repairs and where, and make a legal argument based on that. So, it depends based on the contract, circumstances, and the legal arguments that a lawyer can make.
One question that we do get asked often by all sorts of clients is: how early should you brief counsel or a barrister when you might already have external litigation lawyers — like somebody from our team — or in your case, you might want to brief counsel directly?
We obviously work with lots of barristers. In all matters that go to court we’re working with barristers, and in many others where clients need advice beforehand. And I’ve asked barristers this question many times. I always like to ask them: what do you like about your instructing solicitors? What makes a good instructing solicitor, and what really annoys you with an instructing solicitor? And one answer that I get consistently from barristers is: brief us early, because they see solicitors get things wrong.
And in a very significantly risky and serious dispute for your business, I would recommend first of all briefing external lawyers if you need them, and/or briefing counsel early. We often brief counsel just for a high-level advice, or an initial advice, and then you can get counsel’s assistance with strategic advice. And if there’s a likelihood of litigation in particular, counsel have an understanding of options and processes that are in their wheelhouse. They’re in court every day. We’re not in court every day, and you’re not in court every day, even though we’re lawyers and obviously surrounded by the law. So, keep that in mind. It can obviously be an additional upfront cost, but it can be a very, very good investment to put yourself — your business — in a position to resolve a dispute very quickly.
I think I’ve got one last question that I’ve got time for before we go. Here it is: what’s the best way to get out of a bad contract?
I think I said at the beginning of my talk today: one of the most common disputes from all types of clients that we get relates to getting out of a contract, or terminating a contract. The answer here, again, will be: it depends.
What does the contract say? What do the contract terms say? What’s happened? What’s gone on? What do you want? One of the things that I always look for — and this includes a lease as well; we often have tenant clients wanting advice on how to get out of a lease — where are you at in the fixed term? Are you at the very beginning, or are you towards the end? Because the risk assessment will be there.
Don’t repudiate. Be very, very careful about any communications with the other party about wanting to get out. Look for a contractual basis. See if there’s a way to get out via a breach. Has the other side done anything wrong? Can you mount an argument that they have conducted themselves in a way that would amount to a breach?
If not, the final option: can you negotiate your way out? For example, in a lease situation, is there a way to negotiate a mutual surrender?
And in that case, that’s where we talk about keeping an open mind. Would you be prepared to throw some money at it? How badly do you need to get out of it? What are the commercial risks?
And that’s the time for a without prejudice approach. It’s very helpful to have a litigation solicitor who can guide you through that negotiation process. It’s something we do in nearly every dispute that we’re dealing with, and we can often find your way out with a minimum of cost. It’s not impossible.
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