Often when a dispute arises, deciding to sue the other party is a knee-jerk reaction. Before “taking it to court”, there are some important considerations to factor in which can help you in the management of your dispute and improve the prospects of a favourable outcome.
The most important factor is whether you have attempted to resolve the dispute outside of Court. Attempts to resolve a dispute might include sending a letter of demand, meeting or negotiating with the opposing party or their representative, sending emails to chase up outstanding invoices, and responding to correspondence from the other party.
Some Courts will not permit you to start a legal proceeding unless you can demonstrate (by filing a statement with the court) that you have taken genuine steps to try and resolve the dispute.
Irrespective of this legal requirement, making attempts to try and resolve the matter before court is a valuable step in almost all cases. This is because whether or not you have a lawyer to represent you, litigation is inherently costly, time-consuming and stressful. Once you start a legal proceeding, it is difficult to stop it without risking adverse cost consequences. Resolving a dispute outside of Court is almost always a better option in the long-term, because it allows you to move on with your life or business in (usually) a confidential manner without the hassle, cost and stress of a protracted court case which carries no guarantee of success.
Tips to consider before embarking on litigation
- Engage a lawyer to advise you on the best avenues before litigation to attempt to resolve your dispute, including any mechanisms provided within an underlying contract or agreement;
- Ensure you are adequately represented in any pre-litigation negotiation or mediation;
- Consider drafting or responding to letters of demand;
- Prepare or respond to offers to settle the dispute; and
- If you successfully resolve the dispute, draw up binding and enforceable settlements agreements to protect and empower you in case the other party defaults on what they are required to do.
If you would like to hear more, reach out to the author at aaron@pragma.law or (08) 6188 3340.
