This article may assist timeshare consumers in understanding the stages of the timeshare litigation process. At each litigation stage, you will be presented an assortment of challenges, technical issues and worries.
Litigation can be very costly.
You might receive a lot of bad press
Explaining litigation matters, you have a need to understand you have an issue with another and you want to address the issue and have a final determination. You (whilst in this process) are under a duty to be prudent and reasonable and in respect to costs you incur. Not to act reasonable will come back to bite you at a later date.
By way of example if a party wins their case and in the opinion of the court has spent a large amount of money on perusing the other party, those expenses can be chopped down so as to reflex what a reasonable person would have spent. One such case involved a person pursuing a claim for £20,000 and he spent £45,000 on costs. When the case was meritorious the court flung out the majority of the costs claimed in short the cost award was £10,000 instead of the £45,000 spent.
In quantum and reality the claim was successful and with costs the litigant received £35,000 yet it cost him £45,000 a meritorious victory it was not.
You Need Early Advice
Before embarking on an adventure everyone needs a map showing where they are and where the want to end up. Entering the world of timeshare litigation is just like this model. Therefore, at the commencement of any case you have a need to explain your claim, support it with documents and evidence. Equally you are required to disclose any document which will not support your case.
If you legal advisors are aware of all the contemporaneous documents as well as your honest testimony, they will be able to give you good and reasonable advice. They can also determine the risk you face and the settlement you should consider. Having this information, you are in a position to deliver the outcome you want.
Establishing if you have a claim
There are lots of different types of possible timeshare claims. You may have been financial injured in many ways. You might be owed money by a club, resort of seller, who has failed to remit you sums you are owed.
In each case, your first step is will be to establish if you have a claim in part or at all. Ordinarily you will do this be getting the advice. That advisor will consider the law together with the relevant facts and decide whether or not you have a valid claim against someone else.
Assembling Your Case
If TESS holds a belief that you may have a valid claim, the next step is for you to instruct us and agree a fee arrangement. In some cases we may agree to use a “no win, no fee” conditional fee arrangement.
Once you have instructed us, we will begin putting together the various elements of your case. We will interview witnesses and prepare statements, assemble and preserve relevant documents and instruct counsel. We will also examine the facts, evidence and legal aspects of your case in more detail, and work out a framework for your potential claim.
Pre-action correspondence, negotiation and protocols
All UK legal actions have a pre-action period which is [we believe] the most crucial stage in the life of your case. Timeshare litigation is ruled by pre-action protocols, which are essentially rules central the conduct of the case. Those protocols assist you and your opponents in fully understanding matters before each embark on the issuing of any formal legal proceedings. There are different protocols for different types of case and there is also a court practice direction on pre-action conduct that applies generally in all civil litigation matters.
Essentially, the pre-action rules require a detailed “letter before action” setting out your case. The other party is then given an opportunity to fully respond. This process imparts an understanding on the other parties and as to the strengths and weaknesses of their cases, they might consider Alternative Dispute Resolution (ADR) and/or settlement.
Each party (if risk is identified) may wish to submit to ADR and offers to settle may become principally important at this point. Two reasons for entering ADR are: –
ADR (if it is used) locates the substance and settlement parameters and may affect the outcome especially since the majority of cases settle before they get to trial.
Second, if your case ends up in court costs, considerations come into play and are measured on the manner in which each party has approached discussions about ADR and settlement.
If a party refuses such discussions the court will almost certainly hold that party to account when and if costs are discussed.
If the pre-action correspondence and negotiation does not resolve a case, you will have a need to instruct us to issue formal court proceedings. Dependant on the issues we might have a duty to instruct a specialist Solicitor, Barrister, Mediator or Expert will better assist you and as to which court should hear your case. Depending on the complexity, amount in dispute and type of case, it might prove cost effective to issue in the county court, high court, arbitration or ombudsman service. Each case will carry different options and diverse cost consequences.
To initiate proceedings, we may submit a claim form, which will include the Particulars of Claim,
Between issuing the claim and ending up at trial many situations might transpire. This article is an inappropriate to deal with the complexities and opportunities available in the many different situations.
A relatively small proportion of timeshare litigation cases actually make it to a public trial. Most are settled before trial (which the courts strongly encourage).
A trial is an extended court hearing, usually scheduled well in advance, at which the parties present their evidence-in-chief. Ordinarily, each party’s own witnesses simply confirm the truth of their witness statements and, possibly, give some limited testimony amplifying points made in their statements,
Perhaps one of the most significant and worrisome feature of a trial is cross-examination
Judgment and Costs
After trial, the court will give its judgment and assign liability, give an award of damages as well as awards of interest and costs.
In relation to costs, the general rule is that the losing party pays the winner’s costs.
Last modified: 30th March 2016