Defending claims

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Litigation proceedings are not for the faint-hearted.  Whilst there are risks for a Claimant bringing a claim, the decision to commence one is completely down to them.

As a Defendant on the receiving end of a claim – the pressure is much greater.

• fail to deal with the claim at all and you will have default judgment against you;  
• fail to respond quickly will also result in Judgment. 

How to defend commercial litigation claims

Defendants have to make a series of choices quickly and make sure they follow court procedure at the same time. The rules can be complicated for someone not familiar with the system – Part 15 of the Civil Procedures rules deals with defences and counterclaims.

Doing all this on your own is hard and fraught with danger.  Our excellent commercial litigation team at Francis Wilks & Jones is here to help – our experts can take the stress away from you and help achieve the best result possible – whether that is defence or negotiated settlement. We can also give you the time you need to properly assess the case against you. 

With the right help we can put in place the tactics and strategy needed to achieve the best outcome. For example, if proceedings have already been issued, we can

• request more time to review the allegations;
• open a dialogue with the Claimant;
• propose a halt to proceedings to explore mediation and settlement;
• prepare a robust defence – even in the most complex of claims;
• put together a detailed counterclaim if you have separate claims to make against the Claimant.

At Francis Wilks & Jones we recognise that assisting a Defendant means more than just knowing the law. It also means knowing the right strategic approach to take, adopting the right tactics and getting you in to a position of strength early on.

Threatened with a claim? Don’t panic

Claimants do not usually just issue a claim against defendants without any prior notice. Indeed, they are required to set out details of the intended claim in writing, with the intention to seek to resolve any such dispute before it requires a Court application.  Our webpage on Pre-Action Protocols goes into more detail on these aspects.

If you receive a pre action Letter Before Action – we can help at this stage.

• some claims notified in a Letter Before Action are never actually going to be issued – the letter of claim is sent just as a threat (often with red writing) to scare the defendant into settling or submitting;
• if the claim looks genuine or serious – you can take advantage of the pre action protocol which allows you to request documentation from the Claimant about the claim. And get up to 90 days to respond in a complex claim. As a potential Defendant you are completely within your rights to understand the nature of the claim against you. Do not be rushed in to responding without knowing all the facts;
• we can then help draft a detailed letter of response – setting out the likely grounds of dispute were the claim to become issued at court. This way there is a chance the case will go no further or could settle without formal litigation proceedings being issued at court. 

We would always recommend taking legal advice if you do intend to respond to a Letter of Claim. Any exchanges of correspondence can find their way in to any later legal proceedings – so saying something wrong or badly early on in correspondence can really damage your case. Once something is put to paper (or more usually email) it cannot easily be withdrawn.

Strategy to defend a commercial litigation claim

The key issues to take into account when defending a claim include

• the record-keeping of the defendant;
• their personal knowledge of all background matters; and
• the skills of his / her legal advisor – to ask the correct questions and pinpoint the important legal aspects.

Often both sides to litigation (and their lawyers) get too easily caught up in “point-scoring” – rather than taking a pragmatic and commercial approach to the issue at hand. Rather than increasing the tension between the two sides, a good lawyer will help diffuse the situation and do everything possible to reduce the issues in dispute and try to find a way out of lengthy legal proceedings.

Negotiated settlement

Our team at FWJ can help put a Defendant in the best possible position to try and negotiate settlement of a claim. We understand that most Defendant’s would prefer to avoid trial if possible – so early expert intervention by a skilled legal team is always important.  We are experts in Alternative Dispute Resolution. This is often done by a combination of

• a detailed letter of response setting out matters of fact and legal argument – backed with supporting documentation if it exists;
• pleading a formal defence if proceedings have already been issued; and
• where appropriate – filing a counterclaim against the Claimant for any losses the Defendant itself may have suffered.

Dealing with more technical aspects of a defended claim

More technical issues can be looked at – for example

• whether the claim been brought in accordance with limitation rules set out in the Limitation Act;
• whether the Claimant have they identified the correct legal entity, have they independently considered the claim and is the claim just presented as a threat of litigation (to force settlement) rather than a genuine intention to issue a claim?  These are all important considerations.

From experience, we would suggest that the threat of litigation for many cases is just a threat.  However, and as a defendant, it is difficult to call the bluff of the claimant – the consequence of which may be that a claim is issued.

Defending a Claim

Defending a claim is a serious decision to make. 

• For some claims this could mean you are tied into litigation for months or even years, liable for continuing legal costs, whilst also facing the risk of losing and paying the whole judgment debt, together with accrued interest from when the sum became due (including the time spent in litigation) and the claimant’s lawyers’ legal costs.
• The loss of a claim could triple or more a settlement you could have secured via mediation or negotiation pre-issue of the claim. 
• Unfortunately, the system requires that only the “brave” (or very wealthy) defend a claim through to trial. 
• But you do not need to go all the way to trial and (once you show your willingness to defend) it may be the claimant seeking a settlement and exit from the proceedings (the costs of which they will pay if they do not secure judgment).

Our pages on offers to settle also address steps that may be taken to mitigate your risk and protect you against the costs consequences of legal proceedings.

To defend a claim, you need to trust your lawyer – they must own your confidence and have a detailed knowledge of litigation.  Whilst there is an obvious cost involved in this, there will usually be a cost saving when compared to the time wasted and the consequences of losing a claim via an inexperienced lawyer or by acting as a litigant in person.  

We set out on separate webpages other strategies a defendant can adopt such as requests for further information (to clarify any vague claims) and seeking security for costs (against claimants who recklessly issue claims) and there are numerous more technical defences available, bespoke to your situation.

At Francis Wilks & Jones we can pinpoint the most appropriate grounds of defence or, if you have no defence, methods to mitigate your loss.

Costs risks – and how to minimise these

As a defendant, the associated legal costs of litigation proceedings are a serious concern. 

• Normally you will have to pay your legal advisor on an ongoing basis throughout proceedings whilst at the same time having no guaranteed prospect of successfully defending the claim, however strong your position is.
• Unfortunately you can never guarantee an outcome at court – “litigation risk” is something a defendant has to be aware of at all times – ie the risk of losing.
• There are options on funding a defence of a claim and you can read more about this on our webpages on litigation funding where you will see ways to fund a litigation defence. 
• Whilst the funding options available to defendants (as opposed to claimants) are more restricted, there are still ways to help you to defend a claim where that is your only option.

If you require any guidance or assistance with defending a claim, please do not hesitate to contact us.

I was greatly impressed with FWJ. Their commercial approach combined with specialist knowledge and tactical expertise was pivotal in the claim being dropped and costs recovered in full.

A director we defended

We approached Francis Wilks & Jones following the termination of a large contract by a client on the basis of repudiation. The principal solicitor I dealt with was extremely responsive, assertive and able to redirect the problem against other company which agreed to reinstate the contract fully – with no loss of earnings – and even to pay a substantial sum towards my legal costs! I am very grateful for the assistance of FWJ.

A company director