When a commercial dispute arises, you may believe that you have been misled, that funds have been mishandled, that contractual obligations have not been performed, or that another party has acted unlawfully.
However, believing that something has gone wrong and having enough evidence to take legal action are not necessarily the same thing.
Before commencing proceedings, it is important to consider what information and documents you already have, what may be missing, and whether further evidence is needed to properly assess your position.
What evidence may be relevant before commencing proceedings?
The evidence required will depend on the nature of the dispute. In a commercial matter, relevant material may include:
- contracts, agreements and terms and conditions;
- emails, text messages and other correspondence between the parties;
- invoices, receipts, payment records and bank records;
- company or transaction records;
- representations or statements made before an agreement was entered into;
- photographs, reports or other records showing what occurred; and
- records of any attempts to resolve the dispute.
It is also important to preserve relevant documents and communications once a dispute arises. Even material that may not initially appear significant can become relevant when the circumstances are considered as a whole.
Having these documents does not necessarily mean that you have a viable legal claim. Similarly, not having every relevant document does not necessarily prevent you from taking further steps. The significance of particular evidence will depend on the legal issues involved and the circumstances of the dispute.
What if important documents are held by someone else?
In many commercial disputes, one party will not have access to all of the relevant information.
For example, important records may be held by another party to a transaction, a company, a financial institution or another person involved in the relevant events.
In certain circumstances, there may be legal processes available to obtain information or documents before proceedings are commenced. One such process is known as preliminary discovery.
Preliminary discovery may potentially assist a person who believes they may have a legal claim but does not yet have sufficient information to determine whether commencing proceedings is appropriate.
However, preliminary discovery is not a general right to investigate another person or business simply because you suspect that something may have gone wrong. Legal requirements apply, and whether it is available will depend on the particular circumstances.
Do you need to have all the evidence before speaking to a lawyer?
Not necessarily.
If you are unsure whether you have enough evidence, obtaining legal advice at an early stage can help identify what information is relevant, whether important evidence may be missing and what options may be available.
This can be particularly important where documents are controlled by another party or where there is uncertainty about what occurred.
Considering a commercial claim?
Deciding whether to commence litigation can involve significant legal, commercial and financial considerations. The strength of the available evidence is only one part of that assessment.
Obtaining advice at an early stage can help you understand your position, identify potential evidentiary gaps and determine the appropriate next steps.
If you are involved in a commercial dispute or are concerned that you may not have all the information needed to assess a potential claim, contact our commercial litigation team to discuss your circumstances and the options that may be available to you.