The vast majority of legal disputes in Jersey are solved by discussions leading to agreement between the parties. If you are faced with a dispute it is vital to decide early on the right method to find a solution to the situation. Our Jersey Dispute Resolution Team explains the advantages and disadvantages of the different methods to use to resolve disputes.
Litigation, mediation or arbitration?
Litigation, that is to say the bringing of proceedings before a Court, has until recent years been the principle route adopted to obtain a decision in respect to a disputed matter.
Benefits: Judicial resolutions, ability to obtain and enforce a Court order, appeal process.
Disadvantages: extensive legal costs, length of process.
Once a claimant obtains a Court order in Jersey, it can be enforced on the defendant by restricting the disposal of their real estate, commencing bankruptcy proceedings or engaging the Viscount's Department to:
- take and sell any valuable possessions that they may have; and/or
- in the case of an individual, make an arrest on their wages.
Obtaining an order from the Court can be a lengthy and very expensive process. In order to save legal costs, parties can represent themselves. Without the assistance of legal professionals however the chance of success reduces dramatically. An experienced Jersey litigator will have an array of tactics and knowledge of procedure which can be displayed to their client's advantage.
Even if a party is successful in Court and their legal costs are ordered to be paid by the losing party, legal costs are usually assessed and reduced by approximately a third in a process known as taxation. The successful party will remain liable for the balance of costs. In certain circumstances, a party may be ordered to pay some or all of the other side's costs even if they have been successful in all or part of their claim. An unsuccessful party will generally however be ordered to pay the winning party's legal costs, as well as being liable to bear their own costs and being subjected to the substantive Court orders made against them.
Despite the Court's desire to move matters as quickly as possible and the use of Court timetables, the Jersey litigation process can last many months and even years.
There are mechanisms to reduce the risks of paying extensive legal costs but it is this risk, as well as the length of the process that entices parties to seek other forms of dispute resolution. So what are the alternatives?
Benefits: quick resolution, tailored, structured, informal, lower legal costs than litigation.
Disadvantages: reliant on parties voluntarily honouring the agreement, agreement may not be enforceable.
Mediation requires the agreement of parties to allow a specialist independent mediator to attend a round table meeting and manage the parties' negotiations fail, then the parties will need to resort to another method to resolve matters.
The Jersey Petty Debts Court, who deals with debt claims under £10,000, promotes mediation in contested actions. Such mediations are held under the watchful eye of a Court appointed mediator.
Benefits: quick resolution, tailored, structured, binding agreement, legal costs are usually cheaper than litigation.
Disadvantages: binding agreement may not be enforceable, may not be able to appeal decision.
The arbitration process is similar to that of mediation but is more formal and parties will typically agree to be bound by the decision made by the impartial arbitrator before the arbitration process commences, whether they agree with that decision or not. The powers of the arbitrator are agreed between the parties in advance. Those powers can include an ability to award costs to or against any party.
Of course, any dispute can be settled by agreement out of Court at any time, without the need for mediation or arbitration. The majority of cases settle in this way. This is normally a cheaper and quicker method than any of the above processes. It requires the disputing parties to be willing to accept a mutually agreeable solution without the intervention of an independent third party. It is also reliant on the parties honouring any agreement, but the same can be committed to a consensual document filed with the Court. The advantage of agreement is that you know and agree the outcome: if you walk into a Courtroom or Arbitration you are putting control as to the outcome in the hands of a Judge or the Arbitrator. Whilst a settlement agreement may not be perfect you have certainty as to its terms.
Other points to consider:
- Commencing litigation proceedings can be used as a tool to focus a party’s attention on a dispute.
- When seeking financial damages (and payment of legal costs), there may be little point in embarking on any of the above processes if the defendant is unable to pay such damages, e.g. because they have no money or possessions, or are unemployed.
- In general, any claims based upon a contractual dispute may be brought within 10 years of the date of that contract. Any tortious claims, e.g. negligence, nuisance or personal injury must be brought within 3 years of the date that a claimant is first aware of the issue.
Why use Benest & Syvret?
It is not possible to guarantee success in Jersey litigation or alternative dispute resolution, but Benest & Syvret’s Dispute Resolution Team have a depth of experience in all of the dispute resolution methods outlined above. Our ethos of finding solutions rather than simply identifying problems has greatly enhanced our clients’ chances of success and can often mean the difference between winning and losing a case.
Benest & Syvret have a team of dedicated and approachable Jersey litigation Advocates and Solicitors who are able to provide advice on the best course of action to take, point out where risks and legal costs can be greatly reduced and are able to represent you at any of the above dispute resolution processes.