Australia: Dispute resolution agenda: winning business litigation

No business wants to be involved in litigation. Sometimes, however, there is no choice.

In an increasingly complex and dynamic business environment, businesses must often consider preserving or pursuing legal rights. It may that a business has been sued, there is an important legal right at stake that must be strongly pursued, or the interests of the business or key individuals must be protected.

In these situations, deciding how to respond to litigation, or whether to start or continue litigation, is critical decision that must be carefully and properly considered. It is a judgment that must be frequently reviewed as the situation develops and should be made with the benefit of advisors who are practical, realistic and have experience in successfully navigating business litigation.

Developing a litigation strategy is critical to achieving the right outcome for your business. Below we outline a number of key points crucial to any successful litigation strategy.

  1. WHAT DOES A 'WIN' LOOK LIKE?
  2. No two disputes are the same and you need to consider what a 'win' looks like for your business.

    This may be:

    • pursuing your case all the way through the court process to seek to win and achieve redress,
    • even if there are significant challenges associated with the process;
    • agreeing to a compromise to avoid the disadvantages of litigation; or
    • accepting the position of the other party to avoid litigation altogether.

    The option that is best for your organisation will depend on the circumstances.

    However, it is important to think about this from the outset as it must guide the litigation strategy and should be reviewed throughout the process.

  1. STRENGTHS AND RISKS OF THE CASE
  2. You need to consider the strength and risks of the case.

    You and your legal team must make an initial assessment, but also review that assessment as the case moves forward and further information comes to hand.

    Litigation is rarely a 'sure thing' situation; and facts are critical to the result.

    Having access to the true facts quickly will allow your legal team to make a more accurate assessment of your chances of winning.

  1. FUNDING
  2. It's no secret that litigation is expensive. There is no short cut to case preparation and good case preparation is both time-consuming and critical. Gathering the best evidence on the true facts is paramount and can require a significant investment of time and effort. While short cuts may make things cheaper initially, lack of strong evidence usually means your chances of winning are less or your chances of increased costs later on or overall are higher.

    Understanding litigation funding is a key factor to be considered prior to commencing litigation.

    You need your legal team to put in place a realistic case budget from the start and review that budget on an ongoing basis. Increasingly, there are litigation funding organisations that can assist in certain circumstances and your legal team should investigate this with you as appropriate.

    It is also important to keep in mind that legal costs may also depend on the outcome of the case. If the case is successful, the successful party may be entitled to recover some or all of its legal costs. However, if the dispute is unsuccessful, costs may be ordered against the unsuccessful party and so it will be liable for the other party's legal costs, as well as its own.

    Although a worst case scenario, the funding requirements of litigation have the potential to drive an organisation into financial difficulty. Businesses need to act quickly when litigation is looming in order to minimise financial impacts and have a clear strategy on how funding issues will be managed.

  1. TIME INVESTMENT
  2. Investment of time is critical to winning litigation.

    The facts of the case do not come from the legal team, and any organisation contemplating litigation must be prepared to invest time to assist the legal team in assembling and presenting the best evidence for the case.

    This will often involve key people in the organisation providing detailed statements and compiling large volumes of documentary material for, and with, the legal team.

    This will take key people away from their usual duties at various times during the case. Businesses contemplating involvement in litigation must consider how this time investment will be managed.

  1. OPERATIONAL DISRUPTION
  2. A significant factor to be managed (but often overlooked) is the disruption to regular business operations.

    Court proceedings can be a frustrating distraction from core business operations, shifting the focus from marketing and development to dealing with external stakeholders, regulatory requirements and reputation management. This can affect both short term and long term business operations, which in turn may create additional financial risks.

    Additionally, to balance the financial pressures of litigation, some businesses may feel the need to cut operating expenses, limit existing services or refrain from expanding services or acquiring new customers. Although the cost of operational disruption can be hard to quantify, it is crucial for senior management to have a plan in place to manage such costs if litigation is at hand.

  1. BRAND, REPUTATION AND COMMERCIAL RELATIONSHIPS
  2. Businesses must be wary that during litigated proceedings, judgment may not be confined to the decision of the court.

    Litigation is conducted in the public domain and social media has allowed information to be even more quickly and easily accessed. Depending on the nature of the case, other parties involved, the media and public interest, litigation has the potential to have extensive and ongoing impacts on your business' brand and reputation.

    When contemplating business litigation, it is also essential to consider the importance of your relationship with the other party. Legal proceedings may not only be damaging to your relationship with that party, but other associated businesses and clientele.

    Effectively managing these risks is essential to achieve a 'win' from business litigation.

  1. PEOPLE IMPACTS
  2. Although the prospect of experiencing litigation is a real and increasing one for businesses, it remains unfamiliar territory for many. This unfamiliarity is compounded by the fact that there is often no absolute certainty as to the process, length or outcome of litigation, irrespective of the strength of a case.

    The pressures of litigation can therefore cause personal anguish and emotional hardship. This is not limited to senior management who may be more significantly invested in the overall business or outcome, but to all employees who may feel the stressors of pending legal proceedings and organisational disruption.

    This factor needs to be considered and managed at all levels to avoid significant disruption and long term impacts to both people and the organisation.

  1. A WINNING STRATEGY
  2. Making the right judgment calls in relation to business litigation is a delicate balancing act that requires a clear plan to manage all of the above factors. It should not be entered in to lightly or without careful consideration and assessment.

    While there can be considerable gains associated with litigation, businesses need to have a specific strategy in place to deal with the risks and impacts, including time, emotion and financial and organisational resources. An effective litigation strategy can not only manage but mitigate the impacts and risks of litigation.

  1. FURTHER INFORMATION
  2. Cooper Grace Ward has a very experienced litigation and dispute resolution team that frequently guides businesses in making the right judgment calls in litigation. We understand the impacts of litigation and have expertise in advising businesses in a real world context.

    Our realistic and practical approach means we give our clients the tools to make the right judgment calls for their business and help them manage litigation complexity.

Winner – EOWA Employer of Choice for Women Citation 2009, 2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and 2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best Australian Law Firm (revenue less than $50m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.