After more than two years of discussion and debate we now approach the business end of the Brexit withdrawal negotiations, in the words of the legend Sir Alex Ferguson, squeaky bum time.
As we move closer to the point at which there may be no return, businesses up and down the country are bracing themselves for what comes next. In fact, most have be bracing themselves, and trying to prepare for something, not knowing what it is in fact they’re trying to prepared for. Does this fall into the category of known unknowns, or unknown knowns or unknown unknowns?
Large or small, the business community has been pretty much of one mind, that is, they need certainty. In the absence of that certainty these businesses or most of them at least, whether at the top, in the middle or at the end of a supply chain will probably see some degree of impact as a result of Brexit, particularly if facing one with no deal.
Whatever the outcome, someone, somewhere has incurred costs in terms of preparation.
Furthermore, contracts may well have been entered into some time ago without full consideration of the possible implications of an unseemly and disruptive Brexit. And even if a No Deal Brexit is avoided, who pays for the preparations that were made? The UK government? Probably not.
This brings us to a period when businesses will begin to assess what they have lost or what they will potentially lose, and the period post-Brexit could well see a slew of legal actions being considered and acted on.
The process of litigation is undoubtedly a complex one. In a dispute situation, the option to go straight for court action is a tempting and obvious one and indeed it has its benefits. But it also has its downsides. Complexity is only one, but the relatively high cost, possibly the very thing you’re trying to recover, is also a major factor. Finally time, one thing businesses do not always have much of. These court actions can go on for months, if not years.
But there are other options. Options which are less complex, less costly, have legal effect, and importantly, can take less time.
Adjudication, arbitration, expert determination, mediation and negotiation are clubs in the bag which can all be considered, depending on the dispute in question. All of these options possess particular differences and attributes and, for example in construction contracts, parties have a legal right to have their dispute resolved by adjudication.
But what they all have in common is that they offer the chance to resolve a dispute without the issues that arise through court actions, and they can also be a path to maintaining good relations with a long term client or supplier.
Commercial litigation is a fact of business life but whatever situation you face after Brexit, the key is patience, and a well thought out plan. Disputes don’t have to result in acrimony. After all, it’s good to talk.
Euan McSherry is Head of Dispute Litigation, Aberdein Considine
This article appears under the terms of the DB Direct service