Litigation

Be honest and realistic with yourself

If you have found yourself in a potential litigation situation we would initially urge you to forget about the legal position, keep a cool head and above all be brutally honest with yourself and realistic about what litigation may achieve. When we say be honest, in some cases you will genuinely be 100% in the right, both morally and legally, but it is common for an aggrieved and angry individual to overlook aspects of a dispute which may not be favourable. A lawyer can only advise on the information, documents and evidence available at any given time, so it is vital that if you instruct a lawyer you are honest. Thinking that perhaps the other party may not realise or forget about certain documents you know exist but hope won’t see the light of day is a very risky strategy because as a case proceeds through court process there will be a disclosure stage, which is often crucial. As part of the disclosure obligation, both parties are obliged to disclose all documents in their possession, custody or power whether or not those documents are favourable to your case or otherwise.

Tactics and objectives are incredibly important in any legal dispute

Dealing firstly  with tactics, many disputes are won or lost based on tactics as much as the underlying legal dispute. You may adopt a high risk approach, perhaps making early court applications such as for summary judgment, an injunction or security for costs. Sometimes such tactics will work well and frighten the opponent. However, the burden to succeed with these types of court application is onerous and failure to succeed may hand the initiative to the opponent (defendant in most cases) and embolden him, her, their or it, especially as these types of applications can require a lot of resource and losing may result in an expensive costs order. Often a better tactics to consider tactical offers to settle, which can be made by either party. Such offers are made, generally, on a without prejudice save as to costs basis. This means that the court will be unaware of the offer unless required to take the offer into account if it is rejected. Taking an example, if a defendant is facing a  claim of £30,000.00 but believes that parts of the claim are exaggerated or incorrect and offers £16,000.00 to settle the claim at a fairly early stage. The Claimant decides to reject the offer and does not make a counter offer. The case proceeds all the way to trial and the court orders £15,000.00 in the claimant’s favour. Whilst costs are always technically in the discretion of the court, it would be usual in those circumstances for the claimant to end up paying not only his, her or it’s own costs but also the defendants from the time the offer was made and ejected. So, tactical offers are a way of pressurising the opponent on costs and a very important tactic.

What are you hoping to achieve ?

Turning to objectives, many claimants are angry and want to win, but few litigation cases are outright wins and this doesn’t take into account whether a defendant can or will meet any money judgment. Particular difficulties arise in cases which are not necessarily about money such as neighbour disputes or family disputes over wills. In these cases, costs of the case can far outweigh any money at stake. As advised above, brutal realism can mean that it is far better to consider a mediated resolution wherever possible,

Finally, there is a growing trend, for understandable reasons, for parties to a dispute to represent themselves due to the expense of using solicitors, especially where the small claims limit has now been raised to £10,000 from £5,000. It is important to remember that the court rules, known as the CPR, still apply, and are technical. It is also common for those not legally trained to misunderstand how loss and damage are treated by the court, especially when it comes to breach of contract claims, where there can be very technical legal and evidential points (here is a useful post summarising the issues). In many types of claim it is important to make arguments in the alternative, in the formal court pleadings. In other words, if you fail with one type of argument for maximum damages you think are payable, you have a secondary argument and so on. Even if you decide not to use lawyers for the whole process it may well make sense to have your claim or defence drafted by lawyer, even in a  small claims matter.