Colin Joseph on how litigators can offer alternatives to litigation

We hear much nowadays of alternative dispute resolution. It is normally assumed that this involves the intervention of an outside party, such as a mediator, to facilitate a successful outcome. Certainly litigators should be flexible enough to apply these methods where appropriate. But they must also be prepared to use their own imagination and negotiating skills to find solutions that sometimes lie outside the reach of the litigation process.

A case in point was one handled last year by D J Freeman on behalf of Hertsmere Borough Council relating to the proposed redevelopment of Elstree film studios. Elstree had staged blockbusters including Star Wars, Indiana Jones and James Bond films, but by the late 1980s was in need of extensive redevelopment.

The site was then bought by Brent Walker, which obtained planning permission for a supermarket on part of the site in return for a commitment to redevelop the remainder. The council was keen for Elstree to maintain its position as a leading film production centre and to guarantee jobs.

But boom turned to bust and Brent Walker soon had its own problems. Disputes arose about the interpretation of the agreement, while Brent Walker claimed that it had no money anyway and that Elstree could not be turned into a viable film studio justifying further investment. The council considered compulsory purchase, but realised that this would be a difficult course.

Proceedings were, therefore, issued for specific performance of the agreement with Brent Walker. The chances of success in such an action were thought good, but the problem was that, even if the council won, it would have no control over Elstree to ensure the long-term survival of the studios.

But the action was still pursued, with extensive evidence amassed about the potential for profitable film-making at the studios in order to refute Brent Walker's arguments.

This pressure paid off. Brent Walker agreed to sell Elstree to Hertsmere and the deal was done in a matter of days. This outcome could never have been obtained through the litigation itself, but met the objectives of both parties. Brent Walker had rid itself of what it saw as a white elephant, while Hertsmere had secured the future of what it is confident will be a centre for the newly-thriving British film industry.

Colin Joseph is senior partner at D J Freeman and was previously head of the firm's litigation services.