ASSIGNEMENT 1
PROBLEMS ASSOCIATED WITH LITIGATION WITHIN THE BUSINESS
SETTING AND LEGAL SOLUTIONS TO OVERCOME THEM.
GROUP 4
COURSE TITLE: LEGAL ASPECTS OF BUSINESS (MCPC 609)
DATE: 14/10/2021
NAME
INDEX NO.
Eric Frimpong Junior
10282179
Elizabeth Kumah
10282750
Ernestina Owusu-Sekyere
10282295
Rebecca Adjei Tutu
10282539
Winnie Ama Yayra Alemawo
10283102
Moses Quarm
10282597
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OUTLINE
1. Introduction
 Definition of Litigation
 The litigation processes
 The most common legal issues faced by business.
2. Illustrations of problems associated with litigation (5point)
3. Proposed legal remedies to mitigate problems associated with litigation. (5points)
4. Conclusion
5. References
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Introduction
Litigation is the process of taking a dispute to a court of law. That is if the parties cannot agree
between themselves about the fair and proper outcomes of a dispute. Thus, parties will then
present their respective cases to a court for its judgment.
Litigation is the main dispute resolution mechanism for resolving business dispute in Ghana.
Litigation is adversarial, based on the common law system, and the standard of proof in
commercial claims is on a preponderance of probabilities.
The litigation process can be classified into three broad stages.
First stage, the issue of proceedings and filing of defense.
The legal proceedings commence by the formal service of a claim on defendant. Thus, a
defendant served with a claim form and a statement of case.
At this stage, several challenges may arise as defendant may raise” Objections to claim. The
reasons for this could include.
 The facts, as pleaded in the statement of case, do not support a cause of action (i.e., a
legal basis for bring a claim)
 The court in which the claim has been brought does not have jurisdiction to hear the
claim.
 The facts have not been properly pleaded and the defendant requires more information
before they can file a defense.
Second stage, “Pre-trial procedures, that is when the pleadings are filed, the parties will have
a fair idea of which issues of fact or conclusions of law are in dispute. The purpose of the pretrial procedure is to.
 Narrow the issues in dispute between the parties
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 Disclose to the other party all the documents in their possessions or control which are
relevant to the case (which either support or is opposed to their case)
 Prepare for trial, e.g., estimate the number of days required
Third stage, the Trials, trials are held in open court and heard by one judicial officer. As
part of the pre-trial procedure the parties will have estimated the number of court days
required to hear all the evidence and argument. At this stage, it is the responsibility of the
legal representatives or the litigant in person to ensure that they are properly prepared to
start on the allocated day and that all their witness is at court to give evidence if necessary
The most common legal issues faced by business in Ghana includes the following
 Commercial disputes – e.g., claim for breach of contract such as damaged goods or
recovery of debt
 Employment disputes - e.g., a claim for wrongful dismissal
 Employee injury claims - e.g., monetary claims arising out of an accident where a
person suffered harm.
 Licensing disputes
 Patent and copyright disputes
 Misclassification
 Shareholders Agreement
Litigation can be advantageous in many complex situations, especially where the law and the
facts are on your side. However, there are many problems that a party needs to bear in mind
before committing to any litigation.
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Among these problems include the following.
Firstly, litigation is not as predictable as it may seem. Many people wrongly believe that
they will be able to accurately predict the outcome of business litigation before committing to
it. However, this is unfortunately not the case. Subjective judgments can play an influential
role in the outcome of litigation.
Secondly, litigation is impersonal, in mediation and other forms of legal counselling, you may
have the opportunity to use empathic communication and rapport in order to persuade the
parties involved. In litigation, this will not be possible. Instead, the person making the
judgement will only have the key facts and this is something to consider carefully before
deciding to proceed with litigation.
Thirdly, litigation can destroy business relationship, you should only consider going through
litigation with another party if you have accepted that there will be no future business
relationship between you and them. In litigation, relationships can be severed, and this could
harm future income.
Fourthly, costs of legal representation and courts costs. The costs of legal representation are
the fees charged by your solicitor to act for you in a matter whilst court costs are administrative
fees payable to the ministry of justice in order to bring a claim.
Litigation can be an extremely expensive undertaking. While it is true that in most cases the
successful party can claim its legal costs from the other, it is unlikely that a party would be able
to recover all its legal costs.
Furthermore, time inconvenience to parties, court time and date of hearing may not be
convenient to the litigants. Most of the time, cases are postponed and in the that process months
drag on even for completion of one witness. Even after day’s long waiting for hearing, one may
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know, at the end of day, that the case is adjourned for two months due to non-availability of
the other advocate.
Finally, adverse public image, court proceedings are never secret. Media always covers the
development in important cases. Even the superior court judgements are published. Matters
which have been confidential till the case is brought to a court of law, become topics for public
discussion that may bring notoriety, loss of goodwill and long-standing reputation.
Proposed legal remedies to mitigate problems associated with litigation.
In other words, there are several alternative dispute resolutions other than legal litigation that
businesses can employ to mitigate some of the numerous disputes confronted by business
entities. Among these ADRs include the following.
 Arbitration is the process of disputes resolution in front of an arbitrator or panel of
arbitrators. The process is private, and the parties have some control over the venue
and decision-makers. It can be between two parties or more. Arbitration may lead to
reduce loss of business relationship and avoid adverse public image.
 Facilitation is the least formal of the ADR procedures. With facilitation a neutral third
party works with both sides to reach a resolution of their dispute. Facilitation assumes
that the parties want to reach a settlement. The negotiation is done through telephone
contacts, written correspondence or via e-mail. Facilitation is sometimes used by
judges at settlement teleconferences exploring alternatives to taking the dispute to trial.
 Mediation is a very effective ADR tool when emotions get in the way of a solution.
Mediator can help the parties communicate in a non-threatening and effective manner.
Also, mediation is employed as medium for disputes resolution when parties have a
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relationship they want to preserve. So, when business partners have a dispute,
mediation may be the best ADR procedure to use.
Mediation is more formal but still leaves control of the outcome to parties. An impartial
mediator helps the parties to reach a mutually acceptable resolution to the disputes.
The mediator listens and helps them identify the issues in the dispute, offering options
for resolution and assisting them in crafting a settlement. Mediation can take many
forms, depending on the needs of the parties, such as:
a) Face to face – parties directly communicate during the process,
b) Shuttle – the mediator separates the parties and shuttles between each one
c) Facilitative – the mediator helps the parties directly communicate with each
other or
d) Evaluative – the mediator assesses the merit of the binding arbitration means
the parties have waived their right to trial, and agree to accept the mediator’s
decision as final. Here, there is no right to appeal.
 Neutral Evaluation is a procedure where each party presents their case to a neutral
party who gives an opinion on the strengths and weaknesses of each party’s evidence
and arguments and how the disputes should be settled. It is effective where the subject
matter of the dispute requires an expert in the field. The evaluator’s opinion is often
used to negotiate a settlement. The neutral evaluation is best for cases with technical
issues that need an expert and where there aren’t significant emotional or personal
barriers to reaching a settlement.
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Conclusion
Choosing to use of ADR or allowing a dispute to be resolved through litigation is not an easy
decision. And it is not true that one option will always be better than the other.
Sometimes, the precedent and interim relief that litigation offers will be beneficial to the parties
in a dispute. Other times, the lower cost and creative results of ADR as alternative dispute
resolution may give the parties a result that they can appreciate.
When comparing the two, the answer to whether ADR is better than litigation is the tried-andtrue lawyers answer – “it depends”
References:
Harris (2002). An Introduction to law, 6t Ed. London: Butterworths.
Dominic, H (2020), Dispute Resolution, burlingtonslegal.com.
Melisa Amarteifio and Isaac Aburam Lartey, Sam Okudzeto & Associates, (April 1, 2021.
Ghana) – Litigation and Enforcement in Ghana: Overview.
Findlaw Attorney Writters, limits of Litigation (February 28, 2017),
https://corporate.findlaw.com/litigation-disputes/the-five-limits-of-litigation.html
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