Avoiding cost of litigation

The Court System in England is a front loading system.  If you decide to take a matter to Court you must pay up front for the privilege.  If you are the Claimant you will have to pay an issue fee which will be dependant on the amount you are claiming for. As matters move along and the case is allocated to a particular tier within the Court system you will have to pay further fees.  Should you win your case at the end of the matter, generally speaking you will be able to recover these fees from the other side.

If you are defending a claim you will not have to pay any court fees unless you issue a counterclaim.  A counterclaim is then treated as a separate claim for fee purposes, albeit within the same proceedings as the original claim.  You will therefore be liable to pay the relevant court fees.  Again, should you win your matter you are able to recover these fees.

Due to the costs of court proceedings there is a great emphasis on attempting to settle disputes.  Mediation is usually the best way to attempt this as a third party who is neutral to the matter assists the parties in exploring ways in which to reach a settlement.  The Courts now provide a mediation service that can be used to explore settlement before issuing court proceedings.  The cost is dependant on the value of the dispute and the fees of the mediator are split equally between the parties.  Should a neutral venue be required this cost is also paid for equally by the parties.  Mediators are often local barristers and sometimes retired Judges who have had specific training in mediation, and are adept at understanding the issues in dispute and what will happen in mediation is not successful.

Mediation, like court proceedings, requires preparation and therefore parties should have prepared an agreed folder of documents relevant in the matter.  As with court proceedings, both parties should have already seen copies of these papers so that there are no surprises at the mediation.  The Mediator will then read through the papers in advance of the meeting so that they are fully aware of all pertinent facts. 

Should you not wish to mediate the courts will want to know specific reasons as to why you did not attempt to settle the matter.  If the reason is not acceptable to the courts they may pause proceedings and recommend that mediation be attempted.  Mediation can occur alongside court proceedings and the courts are usually prepared to adjust court schedules (within reason) if there is a genuine attempt to settle the matter.

Jo McKenzie

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