Frequently asked questions
Commercial disputes and litigation
Commercial disputes are often complex and difficult to resolve. Whether you negotiate a settlement with the other party, or the dispute is resolved by a judgment of a Court, after a trial we will be with you every step of the way. Our aim is to see that your dispute is resolved and to give you value for the legal fees you pay us.
Value in Commercial Litigation
In our experience, value in commercial litigation means:
✓ A strategic approach to the resolution of your legal dispute. There must be a strategy on which you and your lawyer agree and not merely a process that ends in a trial. Because litigation is expensive and the outcome uncertain, the key strategic objective in any dispute is to resolve it quickly at the lowest possible cost. We shall advise you in a short time after you first see us of the strategy we recommend to resolve your dispute.
✓ Recognition by your lawyer of your commercial interests. A resolution of a dispute that harms your commercial interests is of little utility. We ask you in the first meeting what you wish to achieve from dealing with the dispute. There is little point seeking legal remedies that are inconsistent with the commercial outcome you wish to achieve.
✓ The exercise of legal skill by experienced litigation and dispute resolution lawyers, not paralegals.
✓ Partner accessibility. We understand what is involved in running a business. If you cannot see us in normal business hours due to your business commitments we shall see you outside normal business hours.
✓ Flexible fee arrangements. We normally charge on an hourly rate basis, but flexibility takes many forms to deal with your individual circumstances. Because of our experience we can cap or fix certain stages of work, or all the costs in certain matters. That presents a challenge to us to do the work efficiently. Sometimes we defer costs or part of the costs to assist clients until a later date or event. We do however expect clients to pay third party expenses such as barrister’s fees and court fees as we do not fund our client’s litigation in commercial matters.
Do I have a claim?
If you have suffered loss because of the conduct of another party you may be able to recover compensation for the loss. This compensation is usually called damages. Unless the other party acknowledges it caused the loss and voluntarily agrees to compensate you, a dispute exists between you and the other party.
If you are involved in a dispute we can review the facts of your case and quickly let you know whether you have a claim against the party whose conduct caused you to suffer loss.
Once we ascertain that you have a claim, and the nature of your claim, we can advise you of the options available to resolve the dispute and what each option involves. If you decide to commence legal proceedings we have the expertise to prepare the court documents needed and to conduct the matter to trial.
What Commercial Litigation?
What is litigation in Commercial Litigation?
If a dispute cannot be resolved informally and relatively quickly with the other party litigation is an avenue available to you. You can seek a remedy from a Court for the legal wrong done to you by the other party.
In most instances the legal remedy you will seek from the Court is a judgment for damages. In some cases, in order to stop another party from engaging in conduct that harms you or your business, you may need to seek an order from the Court that prevents the other party from continuing to engage in the conduct.
What is our aim?
Our aim is to give our clients a clear and concise understanding of their matter so as they can assess their options and make informed and cost effective commercial decisions.
We work closely with our clients. Our commercial lawyers are approachable and always contactable. The commercial lawyer who works on your matter will always be the one to discuss your matter with you.
What if there is a claim against me?
What if there is a claim against me?
You may not yet have been sued, but you are aware that another party may commence legal proceedings against you because of something you did or said. At this stage an early commercial dispute resolution strategy before legal proceedings are commenced may save you and the other party considerable legal costs and expenses. It is very risky to sit back and do nothing. For example, many persons who conduct small business do so through a company. Usually, these people will be directors of the companies through which they conduct the business. Creditors, landlords and suppliers often insist that directors give personal guarantees for the liabilities or debts of the company to whom they supply a good or service. If the company finds itself in a dispute about an unpaid debt and does nothing, the supplier may eventually sue not only the company but the director under the personal guarantee. The result of such an action will be to put at risk not only the company’s business assets but also the director’s personal assets such as a family home. To avoid this scenario, legal advice should always be sought early once a dispute emerges.
Early commercial dispute resolution may preserve an important business relationship that has commercial benefits to both parties. Disputes in life occur between family, friends and associates that ruin relationships. A business dispute with a landlord, bank, supplier, employee, or business partner does not need to end the relationship. If it is serious however, early intervention or action with the assistance of a commercially minded lawyer may resolve the dispute without ending the relationship. Bill Morgan conducted his own business before becoming a partner at Turner Freeman Lawyers, so has personal experience in these matters.
We have considerable experience in resolving legal disputes by a negotiated settlement at mediation or some other alternative dispute resolution process. Already in 2015 our commercial litigation law team has settled five business disputes including three matters involving a dispute between franchisees and franchisors.
Often legal proceedings cannot be avoided. If you are sued despite your best efforts to resolve the dispute, we ensure that our strategic conduct of your defence maximises your prospects of successfully defending the other party’s claim and avoiding an adverse judgment.
What can I do if I suffered a loss due to someone else's action?
I have suffered a loss due to someone else’s action
You should take an active approach to the problem and see a lawyer. The other party may not dispute that they have done the wrong thing or, even if they dispute that they caused you to suffer a loss, they may wish to resolve the dispute quickly.
You may wish to approach the other party on an informal basis to see if they will compensate you or enter into an arrangement that gives you a benefit in return for the loss you suffered. You should do this under the guidance of a lawyer so that you do not make a mistake such as making an admission or accidentally releasing the other party from liability.
If you decide to do nothing and put the loss behind you, this should be an informed decision after you have obtained legal advice on your rights against the other party and the potential damages or compensation you will not recover if you walk away. For example, if you have a decision to make between walking away from a matter and bearing the damages you have suffered or pursuing damages, the likely amount of damages you may recover if successful in litigation will be relevant to your decision. Once you walk away, you may not be able to recover the damages at a later date if a limitation period has passed. A limitation period means a period of time in which by law a proceeding must be commenced.
What are the benefits of litigation?
Benefits of litigation
Often it is not possible to resolve the dispute with the other party by negotiation and litigation is the only viable alternative. The other party may wish to ignore your complaint or avoid you, but it cannot choose to ignore or avoid the Court, at least not without damaging its own position
The pressure of litigation will be felt by the other party, which may persuade the other party to settle. Litigation allows you to exercise and enforce your legal rights. Every client is entitled to his or her day in Court.
In litigation you will most likely recover part of your legal costs if you are successful. If you settle the dispute however, you may need to bear your own costs. There is no person who can order the other party to pay your costs in mediation. The Court has the power to order your opponent to pay your legal costs in a Court matter.
What are the disadvantages of litigation?
Disadvantages of litigation
The main disadvantages are uncertainty and legal costs. There is no guarantee that litigation will give you a successful outcome. Your lawyer cannot give you this guarantee. If you want certainty in resolving the dispute then you need to reach an agreement with the other party called a settlement.
Further, litigation is expensive and time consuming. Most clients find litigation stressful and this stress may be difficult to deal with.
Are there any alternatives to litigation?
There is always an alternative. One alternative is to walk away and write off the loss. A client may choose to do this for many reasons including financial problems, health concerns and family reasons. A more active alternative is available to resolve your dispute and, not surprisingly, is called alternative dispute resolution.
This general term covers a number of processes characterised by more or less formality such as arbitration, mediation and settlement meetings between the parties and their dispute resolution lawyers. These processes are normally much less expensive than litigation and can be undertaken as a step in the litigation process or before the litigation process (in order to avoid litigation).
The importance of alternative dispute resolution is recognised by Commonwealth legislation that requires parties to take genuine steps to resolve certain types of dispute before commencing litigation in some Courts.
How to keep costs down?
Reducing legal fees in litigation and disputes
We seek to reduce costs by managing your dispute in a manner that is not just process driven, but involves the implementation of a legal strategy that explores all reasonable avenues to resolve your dispute with the other party without the need to go to trial.
You will have a commercial objective in seeking to resolve a dispute. Do you want to keep your business or walk away from it? Do you want to continue the business under another name, or in another form free from your current contractual obligations? Do you want to sell the business? Do you want to maintain your commercial relationship with the other party? Your legal strategy should be consistent with your commercial objectives. At Turner Freeman Lawyers we seek early discussions after we are engaged to identify with you the commercial objective in resolving the dispute.
As with any business expense it should always be your financial goal, and your lawyer’s goal, to reduce or minimise costs in pursuing your legal matter with your commercial goals in mind. At Turner Freeman Lawyers we seek to minimise legal costs. The most obvious way of doing this is to explore early ways of resolving the dispute by negotiation. When litigation has started we seek to avoid unnecessary applications to the Court which are time consuming and expensive.
If the dispute cannot be resolved and a trial is unavoidable, your lawyer must prepare for trial and present your case in the most efficient and least expensive manner. This will maximise your prospects of success by emphasising the strengths in your case and exploiting the weaknesses in the other party’s case. Trials however are expensive events and we will tell you well in advance of the likely costs of a trial so you can make financial plans to fund the trial.