ICT dispute resolution

Services relating to the resolution of issues and disputes between parties including analysis of the dispute and the options for resolution, identification of strategies for resolution, planning of the resolution process and participation in negotiation sessions and other resolution steps.

Where possible, a pathway to resolution will be pursued which preserves the commercial relationship between the parties and which will permit “business as usual” dealings to continue during the resolution process or (at worst) to resume once a resolution has been achieved.

Litigation or arbitration of ICT disputes should always be a last resort. The legal and business resource costs of participation in major ICT related litigation are enormous.

It is rare to review a dispute where the performance of either party has been perfect or where the contract mechanisms for dealing with issues like scope variations and delays have been correctly and consistently applied. The range of communications relating to a project almost always provide one or more grounds for claims to be made outside the terms of the contract (e.g. claims alleging misleading and deceptive conduct in contravention of the Trade Practices Act). As a result, a multitude of issues can arise within a dispute and the likely position with respect to some issues will not be black and white.

Early resolution by negotiation or mediation will almost always produce the best potential resolution of a dispute.

services provided for ICT disputes include:

  • Advice and drafting of dispute resolution clauses to be included in proposed contracts.
  • Preventative advice to reduce the risk that disputes will arise.
  • Reviews and advice relating to potential or existing problems, issues and disputes.
  • Analysis of recovery and exit options.
  • Planning and execution of recovery or exit strategies.
  • Leading or supporting resolution negotiations.
  • Selection and appointment of mediator, preparation of mediation materials and representation at mediation sessions.
  • Selection and appointment of expert to determine dispute, preparation of materials for expert determination and representation at meetings with expert.
  • Selection and appointment of arbitrator, preparation of formal arbitration documentation, selection and briefing of counsel to appear at arbitration hearings, preparation of evidence.
  • Selection of appropriate litigation lawyers and management of the litigation process.
  • Electronic and paper document management including identification of relevant documentation to be sought from other parties.
  • Drafting documentation to reflect the agreed resolution of a dispute.

ICT dispute resolution work has included:

  • Advising a licensor with respect to patent licence disputes and managing litigation lawyers in Supreme Court proceedings and appeals. Documenting terms of resolution of disputes.
  • Advising a customer with respect to the complete failure of a system due to a minor but critical deficiency. The supplier claimed the full contract price and threatened legal proceedings. The customer elected to commence proceedings first and negotiated a very favourable resolution.
  • Advising a customer with respect to a combination of project delays caused by the customer and by the supplier. Negotiating and documenting a suitable variation of the contract to minimise financial and time impact on the customer.
  • Advising a customer with respect to a failed web site development project and developing a suitable disengagement strategy to transition the project to an alternative service provider.
  • Advising a supplier with respect to breach of warranty claims made by a customer which were relied on in support of a multi-million dollar claim for the costs of acquisition of a new system from a third party. During the discovery process, it became apparent that the customer had committed multiple copyright infringements and a cross-claim was commenced by the supplier for copyright infringement. The action was settled shortly before trial by payment of a substantial sum to the supplier.
  • Advising a supplier with respect to a dispute with a contractor over the ownership of intellectual property rights. Resolved on the basis that the contractor acknowledged it had no IP rights.