“Neighbours…everybody needs good neighbours…..”

That’s true, not just in an Australian soap opera, but all over the world, so the worst thing we can do is fall out with our neighbours because, as we all know “good neighbours become good friends“… or at least they don’t start a war which ends up in Court as happened in this case – “BOUNDARIES, BORDERS AND COSTS” reported in Civil Litigation Brief  by Gordon Exall

Solicitors are often contacted by one aggrieved party who feels that they’ve been slighted because their neighbour’s tree overhangs their garden or they think a new fence has been put in 3 centimetres too far over. Those are common gripes but on the other hand, it can often be that they may really have their property rights at stake, for example, where an extension is being built up against a party wall without following the procedure laid down in the Party Wall Act 1996 which provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings.

Other common problems can be boundary disputes, the blocking of shared drives and the fallout from buying a house where the sellers have failed to disclose material issues about their neighbours, such as complaints they’ve made for years about rave parties.  If these are not disclosed during the sales process, it is possible for the new owner to bring a claim against the seller for that non-disclosure and the amount to which the problems have diminished the value of the property. Many household insurance policies contain Legal Expense Insurance which usually covers advice on neighbour/boundary disputes, so it’s always worth checking your policy documents. These are complex matters of law which need the advice of an experienced lawyer who specialises in property dispute resolution.

If you need any further help with this topic, call Adrian Boulter on 0208 363 4444

adrian.boulter@curwens.co.uk

www.curwens.co.uk

 

 

 

 

 

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“I’ll see you in Court!”

Recovering a trade debt 

There is a lot to consider before starting court proceedings in England & Wales:

  • The court has to deal with matters “justly and at proportionate cost.”
  • Do a cost/benefit analysis before starting proceedings, including the cost of enforcement.
  • Check the other party is good for the money – there’s no point incurring the cost of litigation if you can’t enforce the judgment.
  • Don’t start proceedings if you don’t intend to see them through. Unless it’s a small claim (less than £10,ooo) you’ll almost certainly be liable for the other party’s costs if you discontinue the claim.
  • Be careful about always threatening to sue if you don’t mean it – don’t just “cry wolf” – the word will get round to your contacts and damage your reputation.
  • Recovery of your legal costs depends on:
    • who wins or loses;
    • your conduct as well as compliance with court rules and orders (for example, a failure to comply with a pre-action protocol can have cost consequences even for the party that wins);
    • when the matter ends (whether before or after proceedings have been started);
    • the financial value of the claim and the “track” the claim is allocated;
    • how the claim is concluded (whether by agreement or at trial).

Reaching a settlement

Litigation can be disproportionately expensive to the sums being argued about, the outcome is uncertain, the court is only able to offer a limited range of remedies and litigation often destroys any prospect of the parties resuming a commercial relationship so consider alternatives -for example:

Negotiation

  • It might be possible to recover the debt or agree an alternative future course of action by opening a negotiation with the debtor.
  • This can be done verbally or in writing (which includes e-mails).
  • Parties usually negotiate on a without prejudice basis.
  • The without prejudice rule generally prevents statements made in a genuine attempt to settle an existing dispute from being used as evidence of admissions against the party which made them.
  • This rule means that, if the negotiation or mediation fails and the business then issues court proceedings, any statements that the parties made in a genuine attempt to settle the dispute (whether in writing or orally) will not be put before the court in the proceedings.

Mediation

  • Mediation is a flexible, voluntary and confidential form of dispute resolution in which a neutral third party helps parties to work towards a negotiated settlement of their dispute.
  • The parties retain control of the decision whether or not to settle and on what terms. 

Doing nothing

You can always simply write off the sum but before taking this step, consider the:

  • Size of the debt.
  • Likely cost of recovering the debt.
  • Importance of the current relationship between the parties.
  • Likelihood of maintaining an on-going commercial relationship between the parties.

norma.morris@curwens.co.uk

http://www.curwens.co.uk

http://www.justice.gov.uk

 

 

 

BUSINESS DISPUTES

If you are in business for any time at all, it’s inevitable that at some time you are going to get into a dispute with a customer or a supplier. If you’re looking to a Judge to resolve these matters for you, you need to keep in mind that the Courts are moving very much nowadays towards Alternative Dispute Resolution such as Arbitration or Adjudication, often specifically included in certain types of contracts. Something which is also becoming extremely popular nowadays is Mediation. For those of you who aren’t familiar with Mediation, it’s a process where both sides agree to meet together, away from the Court system, using the services of an independent Mediator who is specially trained to help both parties come to an agreement which will suit both of them.

There are advantages and disadvantages to this process, the main advantage being that in most cases, even if you take into account the cost of a Mediator – and that is shared between the parties – overall, it often works out cheaper than going through the Court process all the way to trial. Also, you save the time and stress of going through the Court process with the uncertainty and risks of litigation – something I believe is very important for business.

Even if you don’t manage to settle on the day, the process also helps to thrash out some of the points of disagreement between you. I have seen some cases where, even if people don’t manage to settle on the day, sometimes they settle shortly afterwards.

There is one disadvantage if you don’t settle – if you do have to then go on to trial, you incur the additional cost of Mediation but I would say that in my experience, the advantages certainly outweigh the disadvantages. Mediation is extremely popular with the Courts and a Judge at trial will always ask whether the parties have tried Mediation and if they haven’t or one party has refused it, the Judge does have the power to make the Costs Orders as a penalty against the stubborn party – that’s a serious warning about Costs! In conclusion, if you do ever fall out with other parties in business, think carefully about how you can look at resolving it in an alternative way before involving the Courts. At Curwens we have many years of helping clients in these situations so just have a look at our website http://www.curwens.co.uk