Don't Write off the Writ; Based in Birmingham, Partner Alex Bishop Heads Shoosmiths' National Commercial Litigation Team
For the first time since Lord Woolf's 1999 reform of the civil justice system, the more conciliatory approach to resolving disputes advocated by the Civil Procedure Rules (CPR) is being thoroughly tested.
The recession has led to an increase in disputes and a hardening in attitudes. When cash is king, is it time for the return of the litigator? Over the last 10 years we have all adapted to the more co-operative style of 'dispute resolution' as prescribed by the CPR and its pre-action protocols. Parties are required to exchange a raft of information and consider alternative dispute resolution before proceedings are even commenced. There are costs sanctions and other penalties against parties refusing to comply without good reason. Litigation is to be viewed as a last resort.
The past year has seen a marked change in attitude towards litigation, brought on no doubt by the recession. Parties have become less concerned about preserving long term relationships, focussing instead on getting cash in, quick results, minimising costs.
Dispute resolvers are hard litigators once again, and there has been undoubted growth in litigation over the last year, with courts getting busier.
There are certain themes in terms of the relief sought and the subject matter of disputes. As predicted, we are experiencing more fraud-related claims, supply chain disputes, warranty claims and professional negligence claims. A downturn in the economy often highlights investments which have not worked out, where corners have been cut and companies/individuals resort to desperate measures to improve income or increase profits.
We are seeing more applications for emergency court orders, particularly to prevent dissipation of assets, and search and seize orders to catch out unlawful competitor activity. In the current climate these applications are vital if assets are to be protected and organisations are to stay ahead of the game.
Applications for summary judgment/strikeout are also becoming increasingly common as a fast track to judgment, limiting legal costs and wasted management time.
Tough times mean an inevitable hardening of attitude, which is sometimes essential for survival, but parties cannot afford to ignore the CPR, something reinforced by recent messages from the courts.
The subtle changes to Part 36 of the CPR over the last few years are also significant. …