A significant business dispute rarely arrives at a convenient time.
A customer may refuse to pay a substantial invoice. A supplier may allege breach of contract. A shareholder dispute may suddenly escalate. A former employee or competitor may threaten the business. Or a solicitor’s letter may arrive demanding an urgent response.
For directors and business owners, the first reaction can have a significant impact on what happens next.
Commercial litigation does not begin only when court proceedings are issued. Important decisions about documents, communications, insurance, board authority and legal strategy may need to be made much earlier.
The following commercial litigation checklist is designed to help directors and business owners identify the immediate practical issues when a serious dispute emerges.
Before responding to the other party, establish the facts internally.
What has happened?
Who is involved?
What does the other party allege?
What does the business say happened?
When did the problem first arise?
Is anything about to happen that could materially change the position?
Create a short chronology of the key events and identify the employees or directors with first-hand knowledge.
Avoid beginning with a lengthy legal analysis. At this stage, the priority is to establish a reliable factual picture.
Sherwin O’Riordan’s existing guidance on commercial disputes similarly emphasises creating a chronology and identifying key evidence early, particularly where events may require urgent intervention.
Not every commercial dispute requires the same response.
A claim for payment of an invoice that has been outstanding for several months presents a different risk from threatened disclosure of confidential information tomorrow morning.
Directors should identify what could happen if no action is taken over the next few days.
Consider whether money, confidential information, intellectual property, assets, contracts, customers or control of the business could be at risk.
Where the threatened action may cause harm that cannot easily be reversed, urgent legal advice may be necessary. In appropriate circumstances, an injunction or another form of interim court relief may need to be considered.
Do not wait until court proceedings or formal discovery to start thinking about evidence.
Preserve potentially relevant documents as soon as a serious dispute is anticipated.
Depending on the dispute, these might include contracts, amendments, emails, WhatsApp or other messages, invoices, financial records, board papers, meeting notes, project documents, customer records, technical information and correspondence with the other party.
Electronic evidence deserves particular attention.
Relevant information may be stored across employee laptops, mobile phones, Microsoft Teams or similar platforms, cloud storage and company servers.
Routine deletion processes should also be considered so that potentially important evidence is not inadvertently lost.
Document preservation includes material that may be unhelpful to the business.
Do not delete an awkward email, rewrite meeting notes or remove messages because they appear damaging.
An effective litigation assessment requires the legal team to understand the strengths and weaknesses of the company’s position.
A difficult document identified at the beginning of a dispute can be analysed and addressed.
A difficult document discovered unexpectedly much later can create a considerably greater problem.
Once a dispute emerges, directors should consider who actually needs to communicate about it.
Unstructured discussion can generate additional documents and potentially inconsistent accounts of what happened.
Employees should not speculate about blame or legal liability in emails, messages or group chats.
The same applies externally.
Before contacting customers, suppliers, investors or other counterparties about a significant dispute, consider whether the communication could later become relevant to the proceedings.
This is particularly important in boardroom and shareholder disputes. Early communications to employees, customers, investors and potential purchasers can become significant once a corporate dispute develops.
A useful rule is simple:
Communicate what needs to be communicated, but do not litigate the dispute through informal email or WhatsApp conversations.
Where the dispute arises from a commercial relationship, locate the relevant contract.
Do not assume the signed main agreement tells the whole story.
Check schedules, amendments, purchase orders, side letters, statements of work and subsequent variations.
Pay particular attention to clauses dealing with notices, payment, termination, liability, indemnities, governing law, jurisdiction and dispute resolution.
The contract may require negotiation, mediation or arbitration before—or instead of—court proceedings.
It may also specify precisely how a formal notice must be served.
Understanding those provisions early can prevent the business from taking a step that inadvertently weakens its position.
Insurance can be overlooked when management is focused on responding to the dispute itself.
Review relevant policies promptly.
Depending on the nature of the claim, potentially relevant cover could include professional indemnity, directors’ and officers’ liability or another form of business insurance.
The important point is not to assume that a policy does or does not respond.
Check the policy and consider notification requirements.
Some policies may require circumstances or claims to be notified within particular periods or in a specified manner. Directors should therefore avoid delaying consideration of insurance until significant legal costs have already been incurred.
Who within the business has authority to decide how the dispute will be handled?
For a relatively routine debt dispute, that may be straightforward.
For significant litigation involving substantial financial exposure, a major contract, a director, shareholder or the future of the company, formal board involvement may be appropriate.
Important decisions should be taken through the company’s proper governance structure.
That can include decisions about commencing proceedings, defending a claim, pursuing settlement, engaging legal advisers or approving significant expenditure.
The company’s constitution, shareholders’ agreement and other governance documents may also become relevant, particularly where the dispute itself involves directors or shareholders.
Where the board considers a significant dispute, decisions should be properly documented.
The record should accurately reflect the decisions taken and the basis on which the board acted.
However, directors should be cautious about turning board minutes into lengthy accounts of legal advice received or informal speculation about litigation.
That leads to another important issue: legal privilege.
Businesses should not assume that every document concerning a dispute is automatically confidential or legally privileged.
Legal professional privilege is a technical area, and its application depends on the circumstances.
Directors should therefore consider how legal advice is requested, received, circulated and stored.
Forwarding legal advice widely within the organisation or mixing legal and commercial discussions indiscriminately can create unnecessary issues.
Similarly, simply marking a document “Privileged & Confidential” does not automatically make it privileged.
Where litigation is likely or already underway, obtain advice about the appropriate handling of legally sensitive communications rather than relying on labels.
A business can have a strong claim and still create serious difficulties by waiting too long to pursue it.
Limitation periods can determine the timeframe within which legal proceedings must be brought.
But statutory limitation periods are not the only deadlines that matter.
The contract itself may impose deadlines for notifying claims, defects, losses or other events.
Court proceedings and correspondence may also contain response deadlines.
Create a deadline list at the beginning of the dispute and update it as the matter progresses.
Do not assume that ongoing settlement discussions automatically protect the business from an approaching deadline.
Commercial disputes are not always simply Company A versus Company B.
There may be several parties whose position needs to be understood.
For example, a construction or supply dispute could involve a customer, main contractor, subcontractor, supplier, insurer and professional adviser.
A corporate dispute might involve the company, directors, shareholders, investors and lenders.
Establish who the relevant parties are, what contractual relationship exists with each and whether one party may have a claim against another.
This can materially affect litigation strategy.
This is one of the most important items on the checklist.
Do not assume that the objective is simply to “win”.
What would a commercially successful outcome actually look like?
It might be recovering money.
It might be preventing confidential information from being disclosed.
It could be preserving an important customer or supplier relationship.
It could mean terminating a problematic contract without further exposure.
Or the priority might be obtaining certainty quickly so that management can concentrate on running the business.
Sherwin O’Riordan’s commercial litigation practice expressly focuses on understanding the client’s business and personal objectives and, where possible, becoming involved before disputes escalate.
The commercial objective should help shape the legal strategy not the other way around.
Directors should understand the numbers as early as possible.
If the business is bringing a claim, what is the value?
How has that figure been calculated?
If the company is defending a claim, what is the potential exposure?
Could interest, costs or a counterclaim materially increase that figure?
Gather the underlying financial evidence rather than relying on a broad estimate.
This could include invoices, accounts, contracts, replacement costs, transaction records, forecasts or other evidence demonstrating the alleged loss.
The financial analysis can also help determine whether the likely cost and management burden of litigation are proportionate to what is at stake.
Preparing properly for litigation does not mean the business must proceed to trial.
Negotiation or mediation may produce a better commercial outcome.
That is particularly relevant where the parties need to continue doing business together or where a dispute could be resolved through a practical arrangement that a court would not necessarily impose.
Even Ireland’s Commercial Court expressly facilitates alternative dispute resolution, including mediation, as part of the management of commercial proceedings.
Settlement and litigation preparation should therefore not be viewed as contradictory strategies.
Being well prepared can improve the quality of settlement discussions because both sides have a clearer understanding of the evidence, risk and potential consequences.
The first meeting with a commercial litigation solicitor will be much more productive if the key information has already been organised.
You do not need to create a perfect litigation file.
Start with the essentials:
Also identify the people within the organisation who know what happened and who can give instructions on behalf of the business.
For directors and business owners, one of the biggest risks in commercial litigation is making important decisions before the legal and factual position has been established.
An angry email cannot always be taken back.
A deleted document may be impossible to recover.
A missed notification requirement can create additional complications.
An incorrectly handled termination can generate a further dispute.
And waiting too long to obtain advice can reduce the options available to the business.
The early objective should therefore be to preserve the position, establish the facts and make deliberate decisions.
That does not necessarily mean commencing court proceedings.
It means ensuring that if negotiation, mediation or litigation becomes necessary, the business is prepared for it.
Commercial disputes can consume management time, affect cash flow and place important business relationships at risk. Early preparation can help directors understand the company’s legal position while keeping the commercial objective in focus.
Sherwin O’Riordan’s Commercial Litigation & Dispute Resolution team advises businesses on contractual disputes, company and shareholder disputes, urgent injunctions, mediation, arbitration and court proceedings. The firm’s approach includes early intervention where possible and working with businesses to understand and manage the risks arising from a dispute.
If your business is facing a significant commercial dispute or has received a claim or solicitor’s letter, Sherwin O’Riordan Solicitors can advise on the immediate steps, evidence and dispute-resolution options available.
If you would like an immediate call back to discuss any queries, just fill in your details below. All correspondence is treated as confidential.
