This article may assist consumers in understanding the timeshare litigation process, as at each stage in your litigation, you will be presented an assortment of challenges, technical issues and worries.
Explaining litigation, you have a need to understand that you have an issue with another and want that issue addressing so you will receive the damages you seek. Whilst protracting the litigation you will be under a duty to be prudent and reasonable and with respect to costs you incur. Not to act reasonably could come back to bite you at a later date even if you win your case.
By way of example, if a party wins their case, costs generally follow the event. However, that explained, if it is the court’s opinion that you have spent large sums pursuing your opponents you may find that the court turns its attention to the costs and expenses you have incurred. On many occasions, the costs you have incurred will be chiselled down to reflect what a reasonable person would have spent.
In one such case, a person pursued a claim for £20,000 and spent £45,000 on that adventure. When the case concluded, the court considered the costs and awarded £10,000 instead of the £45,000 the litigant spent. Thus the claim was “successful” and costs were awarded in part. That said, it cannot be classed as meritorious as the litigant received £35,000 yet it cost him £45,000. So the adventure, the stress and the loss of quiet enjoyment cost the successful litigant £10,000.00
You need early advice
Before embarking on any litigation adventure everyone has a need to know want they want to achieve. At the commencement of any case, you have a great need to set out your claim correctly and set out the issues with an account of what happened supported by documentary evidence. Equally, as you are required to disclose all relevant documents in your possession and control, you need to consider not only your case but the possible defences which your opponents will raise.
If your legal advisers 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 will face and advise on settlement offered so as to protect your cost position.
Establishing if you have a claim
There are lots of different legal avenues when delivering timeshare claims, so all potential routes to delivering what you want should be explored. If you might have been financially injured, owe more money than you thought in subjection to the financial claims of others or the benefits expected have not been delivered, then you should seek to settle all the issues and before you take matters further. Once proceedings have commenced it’s expensive to stop them.
In each case, your first step is to establish if you have a provable claim. Ordinarily, you will do this by getting together all your documents, presenting them to lawyers and obtaining their advice. That adviser will consider what you have said and the documents disclosed, then apply the correct law. In all evaluations, the position you adopt should be tested and risk assessed.
Assembling your case
If TESS Law holds a belief that you have a valid claim, the next step is for you to instruct us and agree on a fee arrangement. You may elect to pay all the costs yourself or accept a “no win, no fee” conditional fee arrangement.
Once you have instructed TESS Law, we will begin putting together the various elements of your case, will interview witnesses and prepare statements, assemble and preserve all the relevant documents and instruct counsel to settle proceedings. We will examine the facts, evidence and legal arguments in more detail, so your case is framed correctly.
Pre-action correspondence, negotiation and protocols
In all UK legal actions, you have a duty to enter into pre-action protocols. These commence with letters before action and give your opponents time to consider your complaints. This may result in a very early settlement if they consider you have a strong case. The protocols do assist both you and your opponents in fully understanding the issues and before each embarks on costly legal proceedings.
The pre-action rules require a detailed letter before action which sets out your case. The other party is then given an opportunity to fully respond. This process helps each party to understand the strengths of both the claim and the defence to that claim. In the event that risk is evident, both may elect to consider Alternative Dispute Resolution (ADR) and/or engage in settlement negotiations which will avoid lengthy litigation and large legal bills.
Two reasons for entering ADR are: –
- ADR can locate the substance of the claim and defence and deliver alternative settlement parameters not generally available during court proceedings.
- Costs, considerations (If a party refuses to consider ADR, the court may hold that party to account when and if costs are discussed).
If the pre-action correspondence and negotiation do not resolve a case, you will have a need to issue formal proceedings. Dependant on the issues, the complexity, amount in dispute and type of case, it might prove cost-effective to issue in other forums like mediation, arbitration, ombudsman services or others which ensure that costs are restricted should your case flounder. Thus, at all times costs should be fully considered to prevent any nasty surprises later.
To initiate proceedings, we may submit a claim form, which will include your Particulars of Claim and any core documents you intend to rely upon.
Between issuing the claim and ending up at trial many considerations and reconsiderations will be needed and to ensure that risk is constantly applied to the case as it develops.
A relatively small proportion of timeshare litigation cases actually make it to a public trial as most settle to avoid costly trials.
Judgment and costs
After the 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: 7th July 2020