Litigation (Don’t) Do-it-yourself – Case Scenario 1
You may recall that a little while ago I wrote an article highlighting the risks involved in conducted litigation by yourself (DIY) and without instructing a lawyer to represent you. Litigation – (Don’t) Do-it-yourself.
Over the course of this litigation-series of articles I will demonstrate what can happen if you choose to ‘do-it-yourself’ when it comes to litigation and reflect on the benefits of instructing a lawyer.
This second article will focus on demonstrating the risks of conducting litigation yourself without instructing a lawyer. The third article will reflect on the same scenario and assess what could and should have been done differently and how that the outcome could have been very different for the Claimant company.
In this scenario we look at a breach of contract between two companies where one business owner is owed a substantial amount of money – a common occurrence but an incredibly complex situation that requires strong understanding of contract law. There are many different reasons for contractual disputes. For example, a party to a contract could fail to pay for services provided, those services have not been undertaken in accordance with the contract or there is confusion over the parties’ obligations etc. In addition to this, there are a number of potential defences to consider. Again, for example, it may be argued that the contract is not legally binding, the terms are vague or ambiguous or a party has misunderstood their obligations etc. …..
The Scenario
You run a modest-sized local lighting company who produce bespoke industrial lighting for a number of different businesses. The opponent is a large national business that has entered into a contract with your company for the purchase of bespoke lighting from the Claimant.
You decide to bring a claim against the other company as you have made the lighting they requested as per the terms of the contract and provided it to them on time. They have not paid your company for the lighting and have not given a reason as to why. You consider that they have breached the contract and you are owed a significant amount of money.
Step 1 – Try to Resolve Amicably
You have tried to speak with the other company but they have refused to pay and you decide that you have no other option but to issue a claim against them. On the face of it, it seems like a fairly simple dispute – you know the claim like the back of your hand so why bother instructing a lawyer and paying to get them up to speed when you can save money and do it yourself?!
Step 2 – Issue Claim
Your claim is issued in the County Court and the other company, now represented by a firm of solicitors, files a Defence to your claim. The Defence is long, complicated and raises a number of issues that you do not understand.
As far as you are concerned this is a simple breach and the other company should pay you what is owed. Surely a judge will see this too?
Step 3 – Prepare for Court
You prepare and exchange witness statements and documents you intend to rely on with the opponent’s solicitors. Your witness statement is brief – you don’t know what to include and so you type it up in the wrong format and without including the Court details or the correct statement of truth.
Additionally, you don’t know what other documents you need to disclose other than the contract that you are convinced has been breached. The opponent’s witness statement is provided in the correct format with the correct statement of truth.
The sheer volume of their documents is overwhelming– surely you can’t be expected to understand all of those – you begin to read and run out of time. You have urgent and important matters to attend to with your business and these have to take priority.
There has been no negotiations between you and the opponent’s solicitor. Why would you need to negotiate? It’s such clear-cut case that surely a judge is going to award you all of the damages you are seeking.
Step 4 – Attend Court
Before you know it it’s time for the trial. After waiting for months, you will finally have your day in Court. You’ve never been to a trial before. You get to Court and enter the Court room – alone. The Judge asks you for your opening submissions – you’re not sure what to say so you keep it brief.
The Judge asks you to take the stand so you can give evidence. The opponent has instructed a barrister who stands up and spends the next hour questioning you about the contract, the alleged breach and all of the documents provided by the opponent during disclosure that you did not understand.
The barrister starts to talk about the opponent’s Defence – that same document you had at the start of the claim that you did not understand. Suddenly, after the barrister’s questioning the Defence starts to make sense and you realise that the opponent might have a valid argument for defending your claim.
The barrister also raises the fact that your witness statement has been prepared in the wrong format with the correct statement of truth. You did not know that the witness statement had to be prepared in a particular way – surely all the judge cares about is your version of events?
The barrister sits down and now it’s your turn to cross-examine the opponent. You’ve never done this before so what do you ask?
You ask the opponent questions about the contract and the breach. The opponent sticks to their story – there was no breach. You’ve run out of questions and don’t know what else to ask.
You finish your cross-examination and the Judge gives their judgment. They side with the opponent – there is no breach and your claim fails.
The Judge refers to the arguments raised by the opponent in their Defence (that document you did not understand) and to the documents the opponent disclosed to you (the volume and complexity of these being completely overwhelming) and states that these were key to the opponent winning the claim.
As a result of you losing the claim, not only are you not able to recover the damages you were seeking from the opponent but you have been ordered to pay their costs of defending your claim.
Final Outcome
Although the above example represents an outcome that is very much a worst-case scenario the risks are very real. Had you instructed a lawyer to review the Defence you did not understand or to read the opponent’s witness statement and disclosure documents or to instruct a barrister to represent you at trial the result and cost of your claim could have been very different. Not to mention the time and stress that would have been saved by having a professional to advise you and protect your interests.
Litigation always carries risk but it is about reducing that risk where possible and understanding your position. Instructing a lawyer will help do this. RLK Solicitors have a team of knowledgeable and experienced lawyers specialising in litigation who can assist you.
If you have any questions or require assistance please contact enquiries@rlksolicitors.com or alternatively call 0121 450 7800.
Stay tuned for scenario 2 coming soon!
Simon Thompson is a highly experienced lawyer with a primarily insurance based civil litigation background with a particular focus on claims involving fraud.
Simon worked for Legal 500 firm, DAC Beachcroft for 10 years, predominantly acting for and on behalf of a number of insurance companies.
Simon was shortlisted for the National CILEx Legal Expert Award in 2018.
