As litigation becomes less accessible, is there an alternative?

Litigation is in historic decline. Only the rich can afford to use the civil court system, which is dangerous for us all. Because where do we go to resolve our disputes if the courts are effectively closed to the majority of commercial disputes. Duels? Private armies?

When I say the system is closed, I mean that the cost of pursuing litigation places the courts beyond the reach of most of us and that the range of remedies is sorely limited.


What can a judge do?

At the end of a commercial case all a judge can really do is the maths.

As far as it can be calculated, the loser has to pay the winner a sum of money that equates as closely as possible to their actual costs of being wronged.

But of course, many things aren’t amenable to this kind of maths.

What about the cost of the time you’ve spent answering your lawyers’ demands for information and questions about evidence?

What about the knock-on costs of having your accountants answer all the financial questions?

And what about the cost of all the opportunities you missed while you were in court?

None of these will be in the judge’s mind when they do the maths, and neither will they consider the impact on you of the stress and boredom of litigation.


In whose best interests?

There is still, just about, a jurisdiction for ordering what is called ‘specific performance.’ This is when a judge orders a party to perform a task they didn’t carry out instead of trying to calculate the damages that would apply if the task were to be left undone. But it’s not easy.

Lawyers look at their shoes when clients ask them to include specific performance in a pleading because they know judges have proved very reluctant to get involved in this way. Perhaps understandably.

After all, simple maths is easy. A few taps on the calculator and you’re on to the next case.

It’s also possible to ask for an order to prevent people from doing something – what’s known as an injunction.

Lawyers rather like injunctions because they tend to build up legal costs very fast. That’s another billing target smashed!

But the sheer cost of the jurisdiction, and the need to prove you have the assets to compensate the other party if your precious and expensive injunction is discharged, makes them impractical for most of us.

So litigation is a poor apparatus for resolving disputes. It’s very expensive, takes well over a year and all you get out of it is more grey hair, some damages and part of your costs if you win.

Moot is here to show you there is another way.


The Moot Route

We think litigation is fine as a last resort.

And we’re not in favour of duels or private armies.

In our experience, most commercial disputes are between people who understand that they may want to work together again and who have better things to do than make close friends with their lawyers.

They want to put their energy and resources into understanding their case early, so they can weigh up the commercial opportunities and costs in advance.

They want to have a range of settlement opportunities that aren’t restricted to damages and part of their costs.

They have enough grey hair already and want a genuinely collegiate and amicable process that heals division rather than increasing it.

Most of all, they want to get back to the day job as quickly as possible.

Moot can make that happen.


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