“He said, she said”: What you need to know to avoid commercial litigation (Part 2)

Nobody ever aims to become embroiled in litigation but sometimes things can go wrong, and one has no choice but to fight a claim. So how can you avoid claims and what can you do to increase your chances of winning in Court?

Solicitor Peter Livingstone offers some timely advice.

• Don't get it wrong: this point could be considered to be somewhat glib. However, people have a tendency to simplify things when committing them to memory, and that can lead to parties following the broad gist of a contract without complying strictly with its terms. Alternatively, sometimes there is a disagreement about whether the goods and services supplied are of a satisfactory quality. The law will step in to clear up the doubt, but in either case the decision may go against you. Therefore, be sure to have a thorough understanding of the terms that have expressly been agreed between the parties and have a working knowledge of s.14(2) Sale of Goods Act 1979 (which requires goods to be of a satisfactory quality in business-to-business contracts). Combine that understanding with procedures which minimise the risk of litigation, such as getting customers to sign jobs off as being satisfactory, and you will be going a long way to avoiding litigation.

• The smoking gun: a civil trial is not necessarily an exercise in truth, it is about whether you are able to prove your case. Therefore, keep accurate records of conversations (an incomplete note can be worse than no note at all), correspondence, WhatsApp messages, videos, photos and other documentary evidence from initial contact through to satisfactory performance of the contract – comprehensive, contemporaneous, written records are the best evidence one can have.

• Keep it tidy: the order of events is of crucial importance in litigation, so help yourself to win your case by doing your filing properly as things unfold. It may be boring, but it could save you thousands.

• Not our problem: it is possible to get the other side to agree in the contract to limit or exclude your liability. It can be a bit fiddly, but if you can do it, why not? It could save you a lot of money and wasted management time in the long run.

• It's best to check: if a commercial relationship looks like it may be heading for the rocks, take advice early. Trying to sort things out yourself may be cheaper in the short term, but it may end up costing you the case in the end.

For help with commercial transactions, speak to Katherine Gilmour on 01935 846059.

For help with resolving commercial disputes, speak to Peter Livingstone on 01935 846235.