The Danger of Not Negotiating

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the danger of not negotiating in Will dispute and Will contest claims.

What do we mean by negotiation?

In a previous blog (see https://www.willclaim.com/benefits-mediation-will-dispute/ ) we explored the benefits of Mediation. To be clear, Mediation is a form of negotiation. It has more formality than a simple discussion as (pre lockdown) it requires each side to have their own room and the “Mediator” (who is a trained facilitator) engages in a form of shuttle diplomacy (NOTE: virtual mediations via Zoom are currently being run to comply with “social distancing”). It is a remarkedly effective process (see http://expertevidence.com/effectiveness-of-mediation/).

There are other forms of negotiation, for instance, a telephone discussion, exchange of correspondence and so-called “round table” meeting (with all of the parties and their lawyers present) but in our experience, they are no where near as effective. The round-table approach in particular, can lead to a shouting match and put back the prospects of a resolution by months. All of these are forms of “alternative dispute resolution” although it seems to be the case that increasingly by ADR courts are referring in particular to a Mediation.

What the Courts are saying

In the past 5 to 10 years (perhaps longer) Judges have begun pressing the parties to civil proceedings (which include Will disputes, Will contest claims and Inheritance claims or disputes), to engage in these “negotiations” before dragging them into Court. This also applies to claims which are actually in court but before trial (and sometimes during the trial itself). To an extent, this is a tacit admission of the limits and effectiveness of the court process; but also no doubt to free up the court timetable!

Nevertheless, case after case on this subject reveal that there are real (adverse) financial consequences to the party who refuses to engage in ADR. In a recent article in the Law Society Gazette, Masood Ahmed discusses this by reference to a recent decision in DSN v Blackpool Football Club Limited (2020) EWHC 670 (QB)s (see
https://www.bailii.org/ew/cases/EWHC/QB/2020/670.html ) but also see the actual article at https://www.lawgazette.co.uk/legal-updates/comply-with-adr-duty-or-risk-costssanction/5104080.article.

The risk of a costs sanction and the risk to you

Yes, there are two risks arising from a refusal to engage in ADR. Firstly, the risk of a costs sanction by the Court. This can take several forms. In DSN above, the defendant’s cost liability was increased because it was ordered to pay costs on an “indemnity” basis (that means that when costs are assessed by the Court there is a general inference that the party claiming costs have costs that are justifiable). In other cases, the parties refusing to engage in  ADR but who later won at trial, have had difficulty in justifying a complete costs order (for their own costs incurred in the claim) against the losing party.

Secondly, of course and as expounded by Mr Ahmed:

Even if money is paid, that amount may compare favourably with the irrecoverable costs of an action that has been successfully fought. The judge also stated that trials typically involve a significant expenditure of time and costs, and take a toll on the witnesses even for successful parties which a settlement could avoid. Further, a settlement could include statements that fall short of accepting legal liability, which may still be of value for the claimant.

We should add to this the risk of not actually getting what you want (of losing) verses the certainty that a negotiated solution brings.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.