FAQ’s
Please find below a selection of commonly asked questions that relate to our litigation services.
Please note: The content of this webpage does not constitute legal advice and is provided for general information purposes.
A former employee is threatening legal action, how should I respond?
a. Seek legal advice: You may be thinking, ‘well you would say that, wouldn’t you’. However, it is correct that obtaining proper advice early can prevent a lot of cost later down the line. Early advice will help you assess risk including the merits of the claim (for instance, consideration of time limits to bring the claim) and your prospects of successfully defending it. This early assessment will feed into a litigation strategy.
b. Consider settlement: It makes sense to consider settlement at an early stage before you spend money on the legal costs of defending a claim. The commerciality of any settlement decision will take place at the first stage referred to above. Furthermore, the former employee would first need to go through ACAS Early Conciliation before making a claim and this provides a vehicle for the parties to explore settlement with the help of a conciliator.
c. Respond Professionally: While employment matters can be highly emotional, maintaining a professional and respectful tone when responding to the former employee will prevent you from potentially damaging your case and/or your character should you end up as a witness in the employment tribunal. Avoid aggressive or emotional exchanges and focus on addressing the issue calmly and objectively.
d. Document the Situation: Keep detailed records of all communications with the former employee, including any threats of legal action. This documentation will be relevant evidence in any legal proceedings and could help support your case.
e. Preserve Information and Documents: Ensure that any information and documents, including letters, emails, texts, WhatsApps etc. that are relevant to the potential claim are preserved. Subject to certain exceptions there will be a duty to disclose such evidence if proceedings are initiated whether such material supports your case or not.
What are the differences between making a Calderbank and a Part 36 offer to settle?
Calderbank Offers:
A Calderbank offer is derived from the case Calderbank v Calderbank and involves a settlement offer made ‘without prejudice save as to costs’. This means the offer cannot be shown to the judge until after the judgment has been made, specifically during the costs assessment stage.
Calderbank offers are not governed by a formal set of rules and give parties the flexibility to structure the offer according to the specifics of the case. If the offer is not accepted, and the offering party obtains a more favourable result, they may be able to argue for a better costs order on the basis that the other party acted unreasonably by not accepting the offer. However, it’s at the court’s discretion and not as predictable as Part 36.
Part 36 Offers:
Part 36 offers are more procedural, outlined by Part 36 of the Civil Procedure Rules. They are designed to encourage settlement by providing both parties with cost protection. A Part 36 offer comes with specific rules regarding how an offer should be made and accepted. There are also consequences for not accepting an offer that equals or exceeds the judgment of the court. These offers can also influence a costs order made by the Court, where if a party fails to achieve a better outcome than a valid Part 36 offer, that party might be ordered to pay the costs incurred by the other party from the time of the offer being made without reduction. In essence, while Calderbank offers provide more flexibility without a strict procedural framework, Part 36 offers are bound by a formal structure and carry stronger costs implications and protections.
What are my options for resolving disputes with commercial tenants?
a. Adjudication. Under the statutory regime, adjudication of construction disputes has been a successful addition to the range of dispute resolution mechanisms.
b. Mediation. Mediation, early neutral evaluation, and other means of non-court-based dispute resolution are generally cheaper and quicker than court-based solutions. The court has the power to stay proceedings and order the parties to engage in a non-court-based dispute resolution process. The Civil Procedure Rules also encourage parties to use alternative dispute resolution if the court considers that appropriate and facilitates the use of such procedure.
c. Early Neutral Evaluation (“ENE”). ENE is a procedure which involves an independent party expressing an opinion about a dispute or parts of it. The evaluative nature of ENE means that positive or negative views as to merits are expressed, sometimes robustly, by the judge.
d. Arbitration. Examples include The Agricultural Holdings Act 1986 which provides for disputes between landlords and tenants to be determined by arbitration. Similarly, under a commonhold community statement, the parties are encouraged to consider resolving a dispute by using arbitration. The Commercial Rent (Coronavirus) Act 2022 also establishes a binding arbitration process to find a solution to remaining disputes.
e. Court Proceedings. If the dispute resolution mechanisms mentioned above fail to resolve the issue, the parties can resort to litigation. The court has the power to manage cases, which includes identifying the issues at an early stage, encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedures.
It is important to note that these options are not exhaustive and the choice of mechanism will depend on the nature of the dispute, the terms of the lease agreement and the parties’ willingness to resolve the dispute amicably. Therefore, it is always advisable to review the terms of the lease agreement and the specific circumstances surrounding the dispute before deciding on the appropriate dispute resolution mechanism.
