In today’s competitive global marketplace, commercial disputes are inevitable. Disputes can arise with any number of persons or entities you have a commercial relationship with.
They can be regulators, competitors, creditors, suppliers or customers. Disputes can arise whether you are a sole trader, running a small business or operating a public company.
Regardless of the dispute, at Dettmann Phair Lawyers, we understand that commercial disputes are a disruption to the running of your business and are draining, both emotionally and financially.
In the following article, we will take a look at what commercial litigation is, a brief summary of the steps involved throughout the legal process, and some of the strategies utilised by our commercial lawyers to assist you in protecting your business interests.
To learn more about commercial law, visit our commercial litigation page for further information on our legal services.
What is Commercial Litigation?
Commercial litigation relates to any dispute arising from business and commercial relationships that need to be litigated through the Court. These disputes can involve debt recovery, breach of contract, professional negligence, intellectual property law, property and leasing disputes, director, shareholder and partnership issues and any dispute that arises in a business-to-business relationship.
These disputes have usually tried to be resolved through a formal legal process to determine the dispute, such as negotiation, solicitor settlement or alternative dispute resolution, which have all failed. Commercial litigation is a complex area of business law that requires a thorough understanding of the law as well as commercial aptitude to ensure that the best outcome is achieved in all circumstances.
Prior to considering the commencement of proceedings, our commercial litigation solicitors will ensure that they understand the dispute, the issues at play and the commercial practicalities of the dispute at hand. We will also consider the laws that apply and thoroughly analyse the case, assessing its merits, chances of success, and any potential risks.
Once our commercial litigation solicitors have considered the dispute in a meaningful way, they will advise you as to whether you should pursue your claim. If we believe that your claim may be successful, prior to commencing proceedings, they may open a channel to negotiate by sending a letter of demand to the other party outlining your claim and the resolution sought. If the dispute cannot be resolved through negotiation, alternative dispute resolution, such as mediation, will be recommended in the first instance.
In the event that alternative dispute resolution fails, our commercial litigation solicitors may advise you to commence court proceedings. As a preliminary step, we will also recommend that you collect any evidence or documents that may be relevant to the dispute, which may be used if the matter proceeds to Court.
Factors to Consider Prior to Commencing Commercial Litigation
If your corporate and commercial law matter cannot be resolved through negotiation and alternative dispute resolution options such as settlement conferences or mediation, or if those avenues have been exhausted or are considered inappropriate, then our commercial litigation solicitors will consider the commencement of commercial litigation. Before commencing Court proceedings, the commercial litigation solicitors at Dettmann Phair Lawyers will consider the following:
- The value of the claim.
- The time, effort and costs associated with commercial litigation in comparison with the value of the claim.
- Commercial considerations in relation to the time, effort and funds that will be diverted from your business in order to run the litigation.
- How quickly you require an outcome, noting that litigation, depending on the complexity of your matter, may take years to finalise.
- Whether the other party has any assets to meet payment of the judgment if your claim is successful.
- The commercial relationship at stake and how valuable that relationship is to the operation of your business.
- Whether the other party is insured or whether your claim may be covered by your own insurance.
The above factors should be carefully considered before you commit your business to a significant legal process, that is, commercial litigation. Depending on the circumstances, it may or may not be appropriate to commercially litigate your dispute.
The litigation process
If you have decided to commence court proceedings, the first step in doing so is by filing with the Court and serving on the defendant an originating process in the form of a statement of claim or summons or initiating process. The purpose of an originating process is to put the defendant on notice of the case being brought against them. The defendant can then file and serve its defence, which is a response to your claim.
Depending on the Court, the first hearing may be called a directions hearing, call over or pre-trial review. The directions hearing is a short appearance before a Magistrate, Judge, Justice or Registrar where a timetable is set for the remainder of the proceedings.
Interlocutory Hearing and Mediation
An interlocutory hearing is a short hearing which deals with a procedural or practical matter prior to the final hearing. Mediation may be requested by the parties or ordered by the court and may be included in the timetable for the proceedings.
Discovery is the exchange of information, documents and evidence relevant to the issues in dispute. The parties may request documents from each other through discovery or from third parties through subpoenas.
The plaintiff will file its evidence first in the form of a written statement called an “affidavit,” followed sometime later by the defendant filing its affidavit. Documents can be attached to the affidavit called “annexures” or, if there is a large number of annexures, into a separate bundle called “exhibits.” The purpose of an affidavit is to set out the party’s version of events and include evidence relevant to their claim or defence. Experts may also be engaged to provide evidence on legal matters that require specific expertise. Examples of experts include accountants, doctors or building experts, depending on your case.
The final hearing or trial will include opening statements, presentation of evidence and witness testimony, closing argument and final judgment. Depending on the complexity of the case, the hearing may run for one day, or it could run for many weeks. In most cases, barristers will advocate for the parties in court, often assisted by the solicitor. Once the hearing has concluded, the Judge will deliver a verdict. The Judge may deliver their judgment orally at the conclusion of the hearing, referred to as “ex tempore,” or they can “reserve” their judgment and provide it at a later date.
At Dettmann Phair Lawyers, we understand the importance of resolving commercial disputes quickly and efficiently. For this reason, at our law firm, we see businesses often use different methods to resolve disputes, including alternative dispute resolution processes such as mediation and only resort to commercial litigation if required. From minor to complex commercial disputes, our commercial litigation lawyers in Sydney can help!
When engaging in commercial litigation, our tenacious and experienced commercial lawyers will strive to get you the best result whilst always being focused on resolving the dispute and developing strategies to safeguard your business throughout the litigation process.
Speak to us today for practical legal advice on all commercial and corporate matters.