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Commercial Litigation; What, Why, When, How, Where and Who

Below is an extract from an article published in The Spectator (28 February 2017).

“As I consider the complexities ahead, the words of Kipling come to mind:

            I keep six honest serving men

            (They taught me all I knew);

            Their names are What and Why and When,

            And How and Where and Who.

It is the detail – the what and the why, the when and the how, and the where and the who – that is key.”

- Sir John Major, Chatham House speech, 27 February 2017.

I was introduced to Sir John Major at an evening dinner function in 1999. 

It was held at Manchester United Football Club (Old Trafford); it was their magnificent Treble winning season; they were Champions of England and Champions of Europe.

Back in 1999 I was working the summer at Bower Harris Solicitors in central Manchester, gaining experience of life in a law firm, and I was 17 years old. 

On the evening of the function a barrister at our table offered to introduce me to John Major, the former Prime Minister (1990-1997); a man of full political experience.  

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John Major asked me about my plans for the future and I told him of my ambitions to study law at university, and to become a solicitor.

He was full of encouragement and he shared with me the very same wisdom from Kipling.

And it is superb advice for everyone.

I went on to study law at university, gain my law degree, pass the LPC, and made it through the selection process at JMW Solicitors LLP to secure one of their available training contracts.  After two years working as a trainee solicitor, I qualified as a solicitor in 2008, and accepted the position I really wanted in the Commercial Litigation Department.

Today, as an experienced commercial litigation solicitor, with each new case I always ask the What, Why, When, How, Where, Who in multiple dimensions in reviewing all the evidence and to establish the position in law.  

I then repeat the process by fully considering all the detail and the broader facts, for discovery of all the available options, to find the key way to proceed toward most efficiently resolving commercial disputes for my clients.

The What

Commercial litigation covers every type of dispute that can arise in the business context.

The global economy is composed of the choices of its component parts and their complex interactions, within the prevailing political and geopolitical reality.

The economy is always fluctuating and there are always moments of turbulence.

In the world of business a company or individual can experience sudden changes, unexpected twists and turns, intrigues and estrangements.

Resolving commercial disputes is the expert domain of the commercial litigation solicitor, to both protect and restore the positions of their clients.

The Why

There is a Latin saying - quidquid agas, prudenter agas, et respice finem; “whatever you do, do it wisely, and look to the end” - which I embrace as a wisdom.

A good commercial litigation solicitor always keeps the end objective in focus, with every action taken toward advancing the position to achieve the best outcome for the client.

Focusing on the end objective for the client in commercial litigation requires clear thinking, organisation and forward planning.  It is about being able to find options from the detail.  It is about a deep technical understanding of commercial law and the workings of the court.

With any point of law that has a level of uncertainty to the specific circumstances of the case, we obtain counsel's opinion, with barristers at chambers, who are specialists in their own legal niches.

Mental toughness can regularly come into it, but it is also about empathy and establishing “the why” behind both sides of a dispute.

Empathy is a strength for it allows some depth of understanding about how to approach matters, and a level of anticipation that can be exceptionally useful.  Ideally one should seek to predict what moves others could make in response to any action, so as to be prepared, and to keep things moving toward the best possible outcome.

The When

When a good commercial litigation solicitor is instructed at the earliest stage of a commercial dispute it can often make the dispute easier to resolve – however, satisfactory resolutions can be reached at any stage, even after the passage of a number of years (subject to limitation). 

When a claim is made against a client that is without merit we seek to fully defend their position on the strongest possible terms.  

In my experience the correct approach in commercial litigation is usually found in the context of each individual legal problem. 

When I have established the full legal position, my preferred approach is one of looking to find and reach agreement with the other side to resolve the dispute.

See my article: Don't Allow Pride To Come Before Without Prejudice Privilege

However in some cases we do need to take immediate legal action to protect and secure a client's position. This can involve injunctions / freezing orders.

In commercial litigation trying to find and reach agreement to resolve a commercial dispute is a soft power.  Whenever possible I seek a narrowing of the legal issues, to bridge the commercial gap, reach an understanding and settle the dispute.

When a commercially pragmatic outcome can be achieved without getting too deeply involved in all the finer points of law, without bringing in all of the supporting evidence (but having it ready), it is a success for the client.

In my experience when taking an exploratory approach as a first step to resolving the dispute, in many instances it can lead to the desired result, compromise, or commercially pragmatic settlement.  

Other commercial litigation solicitors acting for the other side also tend to be highly informed and should never be underestimated. They also review the overall legal position, the merits of the case, and give guidance to their clients with a view to finding the best outcome in the circumstances. 

If the initial approach does not result in a positive response it is a matter of re-evaluating, escalating the legal action, and actively trying once more to settle the dispute with the other side.

The How

Then there are cases where there is a wider gap between the two sides.

Sometimes there can be reluctance to compromise or give up any position.

At other times some people don't want to accept uncomfortable truths, or don't see an alternative point of view, sometimes because they don't want to see it, or it doesn’t serve their commercial outlook.

And frequently two sides look at the same position but construct entirely different explanatory frameworks with entirely different conclusions.

If one focuses on constructing an understanding of reality that is centred on law, reason and evidence, it makes for a mind equipped to deconstruct synthetic or narrow perspectives, and to unravel and reveal misleading positions from the other side.

We argue from the evidence and the law to support our opinion, to advance the position of our clients.  This sometimes places us against those who believe the limit of what they can imagine constitutes the limit of what is possible.

In such circumstances it is helpful to broaden the context. This is necessary when the other side's argument rests on a counterfactual that is superficially plausible but actually wrong.  It is necessary when their position neglects a range of wider aspects that are intrinsically interlinked, consistent with broader facts, evidence, and the position in law.

At times it is necessary to try and change the pattern, to disrupt fixed thinking, and present other compelling perspectives, so as not to have the issues obscured or distorted.

A key part of communication is patience.  If it has been necessary to fully develop the legal argument to get the position to fully light up, my policy is to hold firm and await the response - seeking to reach understanding with the other side, and to resolve the dispute.

The Where

Sometimes the gap can't be bridged. A satisfactory arrangement can't be arrived at because the two sides hold positions that are mutually exclusive.

Then matters may necessitate a full trial at court, with our carefully selected barristers or Queen's Counsel to advance the case.

Even at this stage there are still opportunities for finding agreement and cases can and do settle satisfactorily before and during hearings.

To cover this part of my work requires a full article that I will set out in the future. 

The Who

Over the years I have worked alongside many excellent solicitors, barristers and Queen's Counsel, and have been grateful to learn from each of them. 

I also enjoy the company of people in so many other different sectors, and most recently have been associating with a few chartered accountants and scientists; intellects of profound power and clarity, with so much enthusiasm for their work.  One commonality they share is the view that knowledge is a tool, and it takes effort to learn how to properly wield it.

Individuals all have their own life experiences, their own expertise, their own perspectives, their own way of doing things, and often fascinating insight to the matters they are specialist in.

We all have an important part to play in constructing an encompassing honest view of the wider world around us.  At times it involves raising many questions, choosing our sources wisely, and deep thinking into longer chains of reasoning.  And it can also involve relying on the expertise of people who are specialists in their own sectors, so as to pull it all together.  The individual matters. We all shape the economy and the world together.

Life is a vibrant web of connections; so many individuals, in so many different sectors of the economy - but so many commercial risks exist throughout.

Those who understand the value of high-level legal expertise, and what good commercial litigation solicitors can do in protecting and restoring their financial positions, have significant advantage over those who lack this awareness.

At my firm I work alongside so many highly informed and motivated solicitors in every department of law, all seeking to achieve the best results for their clients. 

As a commercial litigation solicitor I have experience of working on high value cases of fabulous complexity, involving multi-jurisdictional matters, securing highly satisfactory results for clients.

My main work is in resolving commercial disputes for corporates, small and medium-sized enterprises, partnerships, family businesses, private individuals and start-up companies.

Each client requires and receives my full involvement in seeking to obtain the best results in protecting their positions, in making their positions whole, or in reaching commercially pragmatic settlements.

"It is the detail – the what and the why, the when and the how, and the where and the who – that is key.”

Louise Wakely

Senior Associate Commercial Litigation Solicitor

at JMW Solicitors LLP

Email Louise.Wakely@jmw.co.uk 

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JMW Solicitors LLP is an entrepreneurial, full service law firm based in Manchester that assists businesses and individuals throughout the UK and abroad. 

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