Litigation can be time consuming enough without the added pressures of these uncertain times, and the inevitable resulting court delays.
The Dispute Resolution Team at Aaron & Partners is offering a new service to clients; a way of resolving disputes without the need to involve the courts.
Where all parties want a resolution to their dispute but don’t want the delays that pursuing the matter through the courts would involve, it is possible for the parties to agree to resolve their dispute through an agreed contractual process.
This is likely to be an attractive option where it is in everyone’s interests to have a quick resolution and particularly so given the current issues and additional court delays due to COVID-19. This affords the parties a greater level of flexibility and control over resolving their dispute and it can also take place remotely.
In order for the parties to take part in this form of alternative dispute resolution, they have to enter into a contract confirming the process for resolving the dispute and agree that the decision is binding on the parties. The concept is that a barrister is appointed by the parties to determine the dispute, rather than a Judge making the decision, as would be the case in the usual type of court proceedings.
The parties need to agree the barrister who is responsible for determining the dispute. The barrister’s fee is shared equally between the parties and they pay their own solicitors fees as normal in dealing with the dispute.
Once the barrister has been appointed, he or she will issue directions setting deadlines for the parties to provide their statements of case, disclosure of documents and witness statements. The process is still conducted in accordance with the Civil Procedure Rules (the rules that govern court procedure) as would be the case with court proceedings but without the pressure of there being thousands of other cases that the courts are having to deal with at the same time, with limited resources.
As the process is subject to an agreed contract, the parties can agree to amend or adapt the terms as appropriate to the facts of the case and set suitable time limits for cooperating with the deadlines. The parties would also have the flexibility to agree that the case can be decided on paper without a hearing and witness evidence in person, if the dispute is appropriate for this kind of resolution, though a remotely held hearing would be possible if it was necessary for there to be witness evidence in person and cross examination.
If the parties wish the barrister can give directions in relation to payment of the parties’ costs of the proceedings, to include payment of the barrister’s fee, as would be the position with a court case.
Because the decision of the barrister is agreed at the outset to be contractually binding on the parties, if the party who has to pay doesn’t do so, it is then possible to go to court and enforce the award through a process called summary judgement which is an application on paper that does not require a trial so is much shorter than the usual process for getting a court order.
It would be possible to have the barrister’s decision issued and then seek summary judgment if necessary long before a trial would have taken place if the case was pursued through the courts in the first place.
However, as the parties are agreeing to voluntarily enter into this process and that the barrister should determine the dispute, it is hoped that the need to resort to the courts to enforce the award would only be necessary in very few cases.
Similarly to court proceedings, there can be an appeal process, whereby an appeal from the original barrister’s decision could be made to a more senior barrister. The contract will deal with the procedure in respect of how the parties can appeal the decision.
If you are interested in finding out more about the Aaron & Partners contractual dispute resolution service and how it could be of assistance to you in resolving your dispute, please contact:
Dispute Resolution and Insolvency,
Head of Team and Senior Partner
Tel: 01244 405 558
Dispute Resolution and Insolvency,
Tel: 01244 405 412