When Litigation Becomes Unavoidable: A Client Guide to Managing Commercial Disputes
Litigation is rarely an attractive prospect for a business. It can be time consuming, expensive and can distract senior leadership from pressing commercial priorities. Yet even the most risk-aware organisations can occasionally find themselves in disputes that cannot be resolved by way of negotiation of alternative dispute resolution (ADR) (e.g. mediation).
When litigation becomes unavoidable to achieve a desired outcome, the question is no longer whether to fight, but how to fight smartly. At Culbert Ellis, we believe that effective dispute management is ultimately about control – of cost, risk, information and strategy.
1. Laying the Groundwork for a Strong Case
The earliest phase of a dispute often has a huge strategic impact. Poor decisions can limit later options, increase costs or weaken negotiating power.
Secure the Evidence
Preserve documents and communications - emails, contracts, financial records, messaging apps, and relevant internal databases. Implementing a document hold early prevents inadvertent loss and avoids adverse inferences during disclosure.
Clarify the Commercial Objectives
Litigation strategy should flow from business strategy. Are you seeking compensation, a swift exit, or the protection of a wider commercial interest (such as intellectual property or a core relationship)? Early objective-setting helps shape settlement windows, evidential priorities, and budgeting.
Assess the Merits and the Risks
A realistic appraisal of strengths and weaknesses early on allows the organisation to avoid “sunk-cost litigation”. At Culbert Ellis, we advocate assessments that evaluate: (1) legal prospects of success (2) documentary gaps or evidential vulnerabilities (3) cost exposure and recoverability and (4) opponent behaviour and tactical posture.
2. Pre-Action Strategy
The pre-action stage provides a structured opportunity for parties to exchange information and attempt resolution before proceedings begin. Done well, this phase can deliver faster settlements, narrower issues, and reduced costs.
What businesses should focus on:
1. Comply with the protocol - without conceding the battlefield
It is important to satisfy procedural obligations, but the pre-action letter should also set the tone: clear, persuasive, and commercially focused.
2. Use targeted early disclosure
Early provision of crucial documents can strengthen your credibility and put pressure on the opposing party, especially if they are unprepared.
3. Keep negotiation channels open
Even when a dispute becomes heated, maintaining a professional and solution-focused approach at this stage maximises the chance of early settlement
3. Managing Costs and Risk
Litigation is increasingly shaped by the court’s emphasis on proportionality and efficient case management. Clients expect predictability, and judges expect discipline.
Key tools for cost and risk control
1. Budgets and phased planning
A well-structured cost budget is not merely a procedural requirement - it is a project-management tool. We work with clients to break the litigation into phases with clear financial expectations, ensuring there are no surprises as the case evolves.
2. Part 36 and tactical settlement offers
Proper use of Part 36 offers can create meaningful cost protection or pressure. Timing and framing are critical, and an offer made at the right moment can shift a case’s dynamics significantly.
3. Periodic merit reviews
Cases evolve as new documents emerge, disclosure unfolds, or witnesses are interviewed. Regular strategic reviews ensure your approach remains aligned with commercial objectives and avoids unnecessary expenses.
4. Disclosure
At Culbert Ellis, we integrate legal expertise with modern document-review technologies, ensuring review processes remain proportionate and targeted.
5. Expert Evidence and Witnesses
Credibility wins cases. Well-chosen experts and well-prepared witnesses can significantly shift the balance.
- Fact witnesses: Consistency and clarity matter more than volume. Witnesses should be chosen for relevance and reliability, not simply seniority.
- Expert evidence: In technical or financial disputes, experts are often the cornerstone of a party’s case. Appoint them early, ensure they understand their duties to the court, and involve them in shaping the technical aspects of the case theory.
6. Settlement Strategy
Even once proceedings have started, most cases ultimately settle. Litigation should be managed with that reality in mind. Effective settlement strategies include:
- Mediation at meaningful procedural junctures; or
- Without prejudice meetings between legal teams.
A rigorous settlement strategy can deliver results that litigation alone may not achieve.
7. Conclusion
For clients, litigation can seem opaque and unpredictable. Our role at Culbert Ellis is to provide clarity, strategy, and control at every stage. When litigation becomes unavoidable, success depends on:
- Disciplined early action;
- Assessment of risk;
- Cost-conscious strategy;
- Focused evidence management; and
- Intelligent settlement planning.
Handled well, dispute resolution can protect not only legal interests but also wider commercial and reputational priorities. At Culbert Ellis, we help clients navigate that journey with foresight, confidence, and strategic clarity.
How to Get in Contact
If you have any questions concerning an ongoing dispute, or if you are concerned that an ongoing issue is close to being escalated and you would like to discuss your options, please do get in contact with Jamie Short at jamie.short@culbertellis.com or call +44 (0)203 987 0222.
