29 Jul 2025
By Iain Clark, Partner, Solicitor Advocate, Gilson Gray
The Strategic Value of Early Litigation Support as part of a Holistic Legal Approach to Deal Making
As a Litigation Partner with over 30 years of experience advising clients across Scotland and beyond, I’ve often found myself at the coalface of what happens when transactions go wrong. Disputes following a share sale can be complex, expensive, and damaging – not just financially, but reputationally too. But it doesn’t have to be that way.
A recent instruction involving a contentious share sale of a Scottish company in a highly regulated sector shows how early, joined-up legal thinking can make the difference between a drawn-out dispute and a completed deal. In this case, litigation expertise wasn’t just helpful – it was essential.
The Background: A Trusted Associate Becomes an Adversary
Our clients, shareholders in a Scottish company, had brought in a long-standing associate to help develop the company. That individual became increasingly involved, operationally and commercially, without any formal shareholding.
The relationship soured. Disputes arose over control, strategic direction, value entitlement, and decision-making. Tensions escalated. Threats of litigation were exchanged, and there was real risk of multiple claims that could have paralysed the business.
Recognising this, the parties agreed to explore a negotiated exit. The commercial solution: a robust Share and Purchase Agreement (SPA), with deferred consideration over three years. But with trust badly eroded, the challenge was clear: how do you complete and ensure payment from someone you don’t trust to pay later?
Litigation Strategy Embedded in the Transaction
From the outset, our Litigation & Dispute Resolution Team worked closely with our Corporate Team. This wasn’t back-end support – it was strategic, hands-on involvement throughout the deal. Our role was to protect our clients’ position, manage risk, and ensure the SPA resolved disputes rather than create new ones. Key elements of our strategy were:
We assessed potential claims and counterclaims to shape a negotiation strategy that balanced legal leverage with commercial realism.
Applying a litigator’s lens, we ensured the SPA clearly documented what was agreed and what was being disputed – avoiding ambiguity and preserving evidential value.
The associate’s prior informal involvement created legal grey areas. Through the SPA, we drew a line under these issues with carefully structured bespoke warranties, indemnities and caps – removing the risk of disputes over past conduct.
With deferred consideration stretching over three years, we negotiated clear payment terms, timelines, and default provisions. In the face of challenging negotiations, we secured bespoke third-party payment structures and enforcement triggers – ensuring our clients weren’t left chasing payment without recourse.
We built in escalation and arbitration clauses designed for speed, privacy, and enforceability – critical in case deferred payments were not paid.
The Result: A Clean Exit with Legal Protection
Despite the acrimony, the deal completed. Our client exited the business cleanly, with a structured agreement, payment protections, and legal safeguards. What could have become protracted litigation was instead resolved through negotiation and precision.
Why It Matters
Contentious deals are different. When personal and commercial relationships break down, a “vanilla” SPA won’t cut it. Involving litigators early means:
This deal illustrates how combining litigation, corporate, and commercial expertise enables clients to exit cleanly and securely.
Aligning with Our Clients’ Goals
Our clients don’t just want to close a deal. They want certainty, risk management, and peace of mind. That’s why we at Gilson Gray build cross-functional legal teams to support clients in complex transactions. It’s not just about avoiding litigation – it’s about enabling deals to resolve disputes.
Final Thoughts
Litigation support isn’t just for when things go wrong. This case shows how dispute lawyers, involved early, can turn conflict into completion. We’re not just here to fight fires we help prevent them.
At Gilson Gray, we know how to get the deal done – and get it done right.
What are your thoughts?
If you’re navigating a contentious transaction and need legal support that brings together corporate insight and litigation expertise, get in touch.
To discuss any of the points raised further, please contact him below or a member of our Litigation team here.
