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Business Disputes

When engaging in business disputes, it is important to understand the little things. Attention to detail is key; even if it’s just remembering these few tips on how to deal with these types of legal proceedings.

Do:

  • Take legal advice as soon as possible after an incident occurs or if the business receives any formal documents requiring a response within a specified time
  • Consider the value of the claim, the costs involved and the commercial implications of success or failure.
  • Consider the time, cost and management commitment involved, most of which is incurred early on in the process.
  • Consider how it will affect ongoing commercial relationships.
  • Consider whether there is a commercial advantage to the dispute (for example, by showing that the business is serious about trademark infringement).
  • Consider what the effect will be for both parties if the dispute is made public.
  • Ask whether the other party will be able to pay up if the business wins.
  • Limit internal discussions to those with a real “need to know”. However, ensure that anyone within the business with day-to-day contact with the other party is aware that there is a potential dispute.
  • Suspend any routine destruction process that the business may have in place.
  • Ensure everyone with access to information relevant to the case is immediately notified not to destroy it and to be careful when creating new documents.
  • Take legal advice first to ensure the settlement discussions are conducted on a “without prejudice basis”. This means that anything said about the dispute during the settlement negotiations or in any written settlement offer cannot be used later at the trial. This protection only applies to statements made purely in an attempt to settle the case.

Do not:

  • Leave everything to the last minute.
  • Talk to the other party without having a lawyer present. It is important to avoid saying something that may be used against the business at a later date.
  • Admit anything or agree to settle without taking legal advice. If the business is forced into
    a discussion without legal advice, do not admit anything or agree to settle.
  • Communicate with any external party (for example, a trade association) without taking
    legal advice.
  • Do not send documents relevant to the case to external parties or ask them to
    send them to the business without taking legal advice.
  • Destroy, delete or amend any relevant documentation

Business eBrief - 23 February 2018