Dispute Resolution by Agreement
Whatever the nature of any dispute, and whether or not court proceedings have already commenced, it will always be prudent to endeavour to resolve the issues by discussion with your opponent, if such opportunity arises, as part of the dispute resolution process.
It may, of course, be the case that your opponent is unwilling to consider any form of pragmatic discussion and may be intent on resolving the issues at court. However, the enormous costs of preparing for and being involved in a court trial, the uncertainty of the decision which may be reached by the court and the risk of being responsible for a sizeable portion of the opponent’s cost in the event of failure at court, ought to focus the minds of both parties on achieving a mutually acceptable settlement.
An additional attraction is the likelihood that a negotiated settlement will be achieved well before a Hearing Date becomes available to present the issues before a court.
Stuart Southall of KANGS comments on various aspects of achieving resolution of a dispute by way of an agreed settlement:
Nature of a Settlement Agreements
Where court proceedings have been commenced.
Once an amicable resolution has been achieved, the agreed terms will be recorded in either a Consent Order or, more commonly, a Tomlin Order, which is a more sophisticated form of Consent Order.
A Tomlin Order is advantageous as either party may apply to the court to enforce it in the event of default by the other party. The terms of settlement are recorded in a Schedule, which is not part of the Court Order, thereby protecting their confidentiality
Where court proceedings have not commenced.
It would be prudent for the parties to record their agreement in a written Settlement Agreement thereby providing certainty and evidence in the event of future discord.
This written Settlement Agreement may prove invaluable where, for example, a specific representation proves to be false to the extent that, had it been known previously, an agreement would not have been reached.
Should such a serious representation become evident, an application to the Court will be required to resolve the issue to “go behind” the terms of the Agreement. This is obviously not an easy task and so, the onus would be on the Applicant and this process could of course be further made difficult in circumstances where an “action” (such as a payment) has already occurred. Clearly, all of this would be far more difficult had the agreed terms not been reduced to writing.
Civil Fraud
When seeking to overturn any form of formal agreement, it may be necessary to prove civil fraud. The threshold for civil fraud is different to that of criminal fraud.
In order to prove civil fraud, it is necessary to show that the representation:
- was made knowing that it was false,
- would induce the other party to act upon it,
- caused financial loss.
How Can We Assist?
If you are engaged in any form of dispute, whether or not proceedings have been commenced against you, and where you feel that you may have been induced into any form of settlement fraudulently. It is necessary to take urgent which may include interim action, such as seeking a freezing order, in order to preserve your position where monies have been paid.
Thereafter, it may also be necessary to pursue formal action to account for any damages that may have been incurred as a consequence of the resolution.
Our Mediation Solicitors are available to advise you upon the appropriate course to adopt to protect your position and resolve the issues in a pro-active manner. They offer a wealth of experience representing clients involved in dispute resolution including:
- Breach of Contract,
- Franchising,
- Quality of goods,
- Proprietary Interests (in goods or money),
- Retention of Title,
- Intellectual Property, Trade Marks, Copyright and Patents,
- Trade Mark Prosecution before the UKIPO,
- Exploitation of Intellectual Property Rights,
- Cryptocurrency and
- Norwich Pharmacal / Bankers Trust Applications.
Please do not hesitate to contact the team at KANGS into any form of dispute resolution including mediation. Use the contact details below to speak to a member of our team who will be pleased to assist you:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.
