Establish the position first
What the documents say, what can be shown and what the realistic outcomes are, before anything is sent.
Commercial and corporate
Commercial disputes.
Commercial disputes are decided by three things: what the contract says should have happened, what can be proved about what did happen, and whether the other side can pay. Most of the energy goes into the first two. The third decides whether any of it was worth doing.
What this looks like when it goes wrong
The most familiar version is money owed by a customer who is still a customer. The invoices are outstanding, the relationship is live, and pressing hard risks the ongoing business while doing nothing risks the debt. That is a commercial decision wearing legal clothing, and the answer usually depends on what the customer is worth going forward rather than on who is right.
The next is a termination done badly. A party wants out, ends the arrangement on the wrong grounds or by the wrong route, and finds that the side which terminated has become the side in breach. The reason for wanting to leave was often entirely sound. The manner of leaving is what created the claim.
Then there is escalation caused by tone. A letter written in the temperature of the moment, a reply in kind, and before long both sides have advisers, fixed positions and no route back to the conversation that would have resolved it. Very few commercial disputes are improved by the first letter being aggressive, and a good number are created by it.
The last is a claim worth winning against a counterparty with nothing behind it. Everything about the case is sound, the merits are clear, and the company on the other side has no assets, no insurance and no reason to engage. Winning that is not a result. It is an expense with a certificate attached.
What actually decides it
The contract's own machinery decides more of these than the merits do. Notice provisions, rights to remedy a failure before anything more serious happens, escalation steps that have to be followed, and terms about where a dispute is to be resolved and under which law. Following that machinery precisely is frequently what determines who ends up in the right, and failing to follow it is the most common self inflicted wound in commercial disputes.
Whether the other side can pay decides whether to spend anything at all. A claim is only worth what can actually be recovered from the party on the other end of it, and that is a question about them rather than about the strength of your case. Establishing the position before committing to a course is the difference between making a decision and making an assumption, and it is the step most often skipped because the merits feel so clear.
Then there is what can be shown. Commercial disputes turn on documents created at the time, before anybody was thinking about a dispute: what was agreed, what was reported, what was complained about and when, and what each side did next. Recollection is not evidence, and the version of events a business is certain about is regularly not the version its own correspondence supports. Knowing that early changes what is worth arguing.
Finally there is the cost beyond fees. A formal process is public, it requires you to produce your own documents including the ones you would rather not, and it consumes the time of the people the business most needs elsewhere. Where the other party is a customer, a supplier or a partner, the dispute is also watched by everybody else in the same market. The quiet routes remain open for a while and close as soon as a demand has been sent, which is why the sequence of what is said, and to whom, matters more than the strength of the language.
What we do
Whether it is worth pursuing
An honest view on recoverability, so money is not spent proving a point against an empty company.
The contractual machinery followed
Notices, cure rights and escalation steps operated properly, so the process does not become the problem.
Resolution without escalation
Most of these end in a negotiated outcome, and the cheapest one is available before positions are taken publicly.
Money owed
Recovery pursued in a way that reflects whether the relationship is worth keeping or already over.
Formal proceedings when required
Litigation and other formal routes run with regulated partners where the matter genuinely needs them.
When to spend nothing
Modest sums owed by a customer you want to keep are usually better handled commercially than legally. A conversation, a payment arrangement or a credit against future work costs less than the alternative and preserves something worth more than the balance. Treating every unpaid invoice as a matter of principle is expensive, and the principle is rarely what is actually at stake.
The other case for spending nothing is the dispute where the best available outcome is being right. Where the counterparty cannot pay, where the loss cannot be described in a way anybody could compensate, or where the real objective is an apology, a formal process will not deliver it. That is worth hearing plainly at the start rather than discovering it much later, and it is one of the more useful things anybody can be told.
Commercial and corporate
More on commercial and corporate
- Commercial contracts
- Founders and shareholders
- Corporate structuring
- Deals and diligence
- Joint ventures
Before anything is sent
Positions harden the moment the other side takes advice, and the quiet routes stop being available once a demand has gone out. While nothing has been sent, everything is still open.