There are a number of reasons why someone may find themselves in dispute with an insolvency practitioner. Litigation can arise in relation such matters as:
- the fate of the matrimonial home
- reference or transaction at undervalue claims
- wrongful or fraudulent trading claims
- claims for recovery of illegal dividends or overdrawn loan accounts
- misfeasance claims
- retention of title claims or
- disputed debts or the collection of money owed.
Often insolvency practitioners will have two advantages in litigation. Firstly, they may have solicitors acting on a no win, no fee basis, and secondly, they may have obtained insurance against the risk of an adverse costs order.
This means that they have little to risk from losing litigation because, even if their claims fail at a trial, they may neither have to pay their lawyers nor contribute to the costs of the winning party.
On the other hand, parties facing a super-litigant in these circumstances can be in a relatively weak position. If they lose at a trial they could find themselves liable to:
- the cost of the claim itself, plus
- the insolvency practitioner’s lawyers’ fees
- plus an ‘uplift’ on those fees of up to 100%
- plus the cost of the adverse insurance premium, which can also equal or even exceed the level of the fees
For this reason, when facing a claim from an insolvency practitioner, mediation at an early stage can be an invaluable way to find minimise the risk and achieve a commercial settlement.
Having an insolvency practitioner as mediator can ensure that the issues at stake will be quickly understood and can maximise the prospect of an effective and efficient settlement.