Law
Paris Smith's Chris Holliss
Published: October 18, 2023 | Updated: 19th October 2023
Litigation in England and Wales can be a daunting, complex and costly process, writes Chris Holliss, Partner at Paris Smith LLP.
In order to navigate litigation through to a successful outcome (whatever that may be for you given your specific scenario), it is essential that you are well-prepared, strategic and commercial.
I have produced below ten pointers that will assist you in achieving your aims, or at very least aid you in assessing whether you wish to embark upon the journey to trial;
1) ‘Fail to prepare and prepare to fail’:
I have seen advice on the internet that suggests that ‘before entering the courtroom, ensure you have a deep understanding of the facts, legal principles, and relevant case law.
‘This forms the foundation of a strong case’. I disagree (in part). It is vital that you have this level of understanding long before you even consider entering a courtroom. If you are the claimant, you should have this level of understanding prior to issuing proceedings.
Likewise, if you are the proposed defendant, you need to understand the prospects of the case being posed against you before you decide to start incurring substantial costs defending a claim that you are most likely going to lose.
Make informed decisions; not bad ones fuelled by emotion. Have an awareness of the law of probability and apply it to your case. For example, if you have to prove 2 facts to succeed and there is a 60% chance of proving each of them then the prospects of you succeeding are poor – just a one in three chance.
2) Seek legal advice if necessary:
If you are in any doubt as to your legal position, or indeed unsure as to the process from the pre-action stage and obligations incumbent upon you, through to the challenges of preparing for and attending trial, then seek legal advice.
As a director, you have a fiduciary duty to act in the best interests of the company, which may not always accord with your personal view on a case. Experience with disputes and Court-processes will vary hugely, and the legal landscape is constantly changing, so if in any doubt, do seek advice.
All too often we are asked to assist when a party to proceedings discovers that they are out of their depth, by which time irreversible damage may have already been sustained to your prospects of success;
3) Clear communication:
Do not engage legal representatives (or indeed consider embarking on litigation) unless you are willing to maintain open and transparent communication with your legal advisors.
Disclose everything to them as everything will need to be disclosed to the other side during court proceedings and it is best you let your solicitor have the facts, good and bad. Ensure your legal team are fully appraised with detailed instructions concerning all aspects of your case and ensure that you fully understand the advice that is being given.
I have been on the other side of far too many cases that should never have been issued, or defended, and have on many occasions been left bewildered as to how the opposition allowed a case to progress as far as trial, only to lose be ordered to pay significant adverse costs.
Do not blindly accept advice without fully understanding the basis of such advice. There is risk, naturally, but then there is ‘blind-risk’.
4) Alternatives to litigation (“ADR”):
You should consider alternative options other than pursuing a claim through to trial, such as mediation or arbitration amongst many other recent nuances. Alternatives may suit your requirements better in terms of cost, speed of resolution and the overall outcome.
If ADR has truly worked, both parties leave feeling that they have both given up ground that they did not want to, but I would rather that than take the risk of 18 months’ of litigation and the associated high-risks. Have an open mind at very least.
5) Objectivity:
It is crucial that you view your case (and that of the opposition) through the eyes of an objective bystander and assess the strengths and weaknesses of your position.
This will allow you to identify the opposing party’s main arguments and afford you an opportunity to forge counter-arguments. In my experience, many litigators are unable to detach from the emotion of subjectivity to the detriment of their case.
It is your legal adviser’s duty to pressure-test your case (and that of the opposition) all the way through the legal process. New evidence may come to light which flips the balance and prospects may change. Forewarned is forearmed.
6) Solid foundations:
No one embarks on an initiative fully expecting a dispute to arise. However, the mere fact that a costly dispute could arise should be sufficient to persuade you to maintain thorough records of all communications, evidence and documentation in support of a potential case.
Again, all too often insufficient evidence exists that hampers prospects of success. It is your duty as a claimant to prove your case. The more evidence you have, presented cogently and coherently, the better your prospects become.
Do take time to commit orally agreed terms to an email; record calls in an attendance note; collate invoices and other relevant materials. Do not assume that a dispute will never arise, as that happens to ‘other people’ or ‘other companies’. At some stage, it very likely will.
7) Comply with Court directions:
In the unfortunate event that a claim is formally issued, Court directions will follow as day follows night. As equally predictable is that of sanctions against a party who fails to follow Court directions.
There will need to be a very good reason why a party has not complied with a Court direction in order to avoid sanctions (such as adverse costs, or even a claim/defence being struck out).
Once a claim has been issued, unless you negotiate an early exit or apply for the claim/defence to be struck out, you’re on this ride until the end. Comply with the rules or expect a bumpy (and expensive) ride.
8) Be open to negotiation:
You may ‘want your day in Court’, but the Court really does not want you to have your day unless it is absolutely unavoidable. The Court imposes rules on parties from the pre-action stage and throughout the process to trial, to consider ADR/mediation/negotiation.
The Court will not look kindly on a party who has flatly refused to engage in ADR (or even remained silent on the matter) and even a successful litigant can face adverse costs for refusing to engage in ADR , as counterintuitive as this may appear.
Therefore, whether making an offer, or receiving one, it is crucial to consider a risk/benefit analysis on the spectrum of outcomes and the impact such offers could have on your trajectory toward trial.
A well aimed offer in the correct format can not only ensure that you get your costs if the matter does go to trial but it can sometimes result in an enhanced payment being paid by the Defendant as a penalty for refusing the offer made.
9) Perception is everything:
As difficult as this can be at times for parties to heavily contested litigation, desensitise yourself to the emotion of litigation. Think commercially. Our most successful clients are able to approach a dispute commercially; conduct themselves professionally, proportionately and respectfully.
The words “it’s the principle” will ring in many a litigator’s ears and will usually be followed by the advice that “principles cost”.
In the event a claim makes it to trial, the way in which you have conducted yourself both pre-action and post-issue of proceedings, all the way to trial and throughout, will be critically assessed by a judge.
Your legal advisor will use the word ‘reasonable’ more than any other word, for a valid reason. Act reasonably. Listen to your legal advisors as they will have a better idea of what the court is likely to consider to be reasonable, which may be quite different from your own perception and it is what the Judge will think that matters.
10) Expect the unexpected:
Litigation is by its very nature dynamic. Unforeseen circumstances arise. New evidence appears; hearings are adjourned; judgments can occasionally be unpredictable due to judicial discretion.
Be flexible in your strategy as and when a new fork in the road appears. Have no preconceptions. It will be your legal adviser’s role to navigate you through the unknown; to keep you fully informed and to advise you on your options when the path ahead diverges.
After all, we cannot make these decisions for you, but we can best advise you on the benefits and risks of each option.
Conclusion
It is a misconception that litigation is just about winning. It is about achieving your objectives as a litigant; acting in your best interests and arriving at the best possible outcome.
No two cases are identical and the above should serve as general guidance. One core theme does run through each piece of litigation, however: achieving your objective will require a combination of meticulous preparation, legal expertise, and strategic thinking.
By following the above guidance, you will simply increase your prospects of achieving your goal.
