Do I really need a solicitor? Commercial litigation dangers
In this series, we explore real-life examples that our lawyers have encountered where failing to seek solicitor advice has caused clients all manner of problems. Along the way there are useful ‘takeaways’ to help you avoid making the same mistakes.
While DIY in a home-improvement context can be a worthwhile exercise, the same is rarely, if ever, true when dealing with legal issues. As borne out by the case studies in this series, ‘going it alone’ in almost any legal matter can be a recipe for disaster, but the area of commercial litigation is particularly fraught with perils.
Daniela Catuara (pictured), an Associate Solicitor in our Commercial Litigation team, regularly has to ‘firefight’ on behalf of clients who decided to manage a legal matter themselves without contacting a solicitor. Below are some recent cases she has encountered.
Mishap after client issues claim herself
A client approached Daniela after issuing a claim in court herself without legal advice or assistance. The client had obtained a judgment in default (that is, a judgment awarded after the defendant failed to respond to a claim within the requisite timescales). The defendant had since applied to have the judgment set aside and the matter was now scheduled for a hearing.
Unfortunately, the client’s claim had not been properly served and Daniela had to inform her that the judgment would almost certainly be set aside. In addition, the client was at risk of being ordered to pay the other side’s costs of the application.
If the client had contacted Gaby Hardwicke before issuing the claim, we could have ensured the claim was properly served. The claim could then have proceeded as normal or if she got a judgment in default, it may have been easier to contest an application to set aside, as the defendant would have needed to show they had grounds.
In the event, the client incurred costs of around £1,000 in dealing with the application. In the circumstances, if the claim had been properly served, it is likely that the other side would have defended it and there would have been no application to set aside at all, which would have limited costs incurred and avoided the risk of paying the other side’s costs.
The risk of ignoring legal letters
The client received a letter before action and elected to ignore it instead of contacting a solicitor. If the client had asked Gaby Hardwicke to reply to the letter, it’s likely we could have avoided a claim being issued against him.
However, as he failed to reply, a claim was issued and he had to incur the costs of preparing and filing a defence. This meant extra money on legal fees that could perhaps have been avoided if he’d tried, via a solicitor, to reach an early settlement and avoid court proceedings.
This, unfortunately, is a common scenario. All too often, clients approach us once proceedings have been issued against them instead of when they are merely threatened with litigation. If proceedings have not yet been issued, with a solicitor’s help you can often avoid court action.
Landlord possession problems
Another common scenario is where a landlord or their agent issues possession proceedings themselves, but because of a mistake they have made the notice is invalid. Recently, Daniela was approached by a landlord in this situation, who was faced with a hearing after the tenant put in a defence.
Unfortunately, because she was instructed at such a late stage, Daniela had to tell the client that because his notice was invalid his claim was bound to fail. Luckily, Daniela managed to agree a good settlement with the tenant. This was fortunate as the tenant could have stuck to their position and the claim would have been dismissed. This would have necessitated the landlord serving a fresh notice and fresh proceedings, a costly exercise that would have delayed the tenant’s eviction from the property by around another four months.
Usually, landlords in this situation will urgently need their property back, either because the tenant is causing problems, damaging the property or not paying rent, or because the landlord needs to redevelop or sell the property.
Specialist commercial litigation lawyers in Eastbourne, Bexhill and Hastings
For expert advice on any commercial dispute matter please contact Daniela Catuara at or 01323 435 900.
Posted: 01 February 2017
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