Litigation Part I – Pre-issue

When you think of litigation, you immediately think of a trial: those ‘Ally McBeal’ sessions in court, witnesses giving evidence, hearing the judge rule you have won. In reality, most litigation cases don’t reach court and even if they do, the bulk of the preparation work will have been done right at the beginning of the process.
There are three points to consider at the pre-issue stage:

• the case
• pre-action protocols
• Alternative Dispute Resolution (ADR).

You should also look at funding for the case and the usual professional conduct considerations but these will not be covered in this piece.

The case

The most important thing to do when faced with a new litigation case is to objectively assess the case, its strengths and weaknesses and possible outcome. You should also consider what evidence is available or could be obtained, as any claim made at this stage may one day reach the hands of a judge.

It is useful to break down the assessment into stages:

1. The most important assessment to make is to check the opposition can actually pay! A paper judgment is not worth anything to your client if it can’t be enforced.
2. What is the basis for the claim: contract, tort, statutory, etc. and what are the elements of the case? i.e for a successful claim of tort you need duty of care that has been unlawfully breached resulting in damage that is not too remote. Split out the elements of the claim.
3. What is the client looking to achieve? Ensure that the client’s objectives can actually be achieved through court action, as this is not always the case. (It may be your client only wants an apology, in which case consider whether the litigation and the associated risks and costs are appropriate.)
4. Assess your client’s claim and match the case history to the elements of the claim. Is the legal basis for the claim prima facie made out? Be wary if there are elements missing or weakly substantiated – you should try to get more information.
5. Look at evidence – what do you have, what is its strength, is anything else available, will it be admissible in court, etc. Check the relevance of what your client has given you – they are likely to give you everything. Does the evidence support your client’s account? Be aware of anything that seems odd – missing bank statements, numbered pages not in sequence, etc.
6. Assess the strengths of your client’s claim – are there any holes or obvious contradictions. Is there anything that weakens your client’s case?
7. Anticipate the position of the opposition, what would you do if you were in their shoes? How can you counteract those arguments?

The purpose of such a detailed assessment of case is partly to cover your back – pursuing a claim that is not substantiated is at risk of cost orders and criticism – but also to assist the first process in any litigation: the letter before action.

The letter before action is notification of the case to the opposition. It should set out who the claimant is, what their claim is and the legal justification for it. You want to detail your client’s case as strongly as possible to make it difficult for the opposition to counter. A strong letter before action might just scare them into settling – an ‘easy’ win! On the other hand, a poor, untimely or non-existent letter before action might expose your client to costs implications. The letter before action will almost always be considered for costs.

If you only remember one thing at this stage, it is to be objective. The client will be very involved with their case and may not be able to assess its strengths without bias. Also, what they are telling you might not be the whole truth. They are only human after all – cross-reference everything to see it makes sense and ties together. It is the client’s decision to continue with a claim but if you feel that it has little prospect of success, you will need to clearly advise them of this in writing (to avoid the negligence claim when it all goes wrong) and it will be a factor when you consider funding options (you don’t want to agree a CFA on a case you won’t win!)

Pre-action protocol

Pre-action protocols are codes of conduct enforceable by the court and apply in certain types of cases such as personal injury, professional negligence or construction. They dictate formalities, timescales and etiquette of pre-issue engagement and if not followed will result in cost implications.

The aim is to encourage early settlement by requiring an early exchange of information and discussion between the parties. If the matter does reach trial, the early discussion will have hopefully also reduced the issues to those which are actually disputed.

The pre-action protocols have a Practice Direction and can be found online – it would be useful to keep a copy of these to hand in case you need to refer to them during the course.

ADR

ADR is exactly what is says on the tin – alternative methods of resolving disputes such as mediation, arbitration, and expert ruling. Some have their own rules and in limited cases can be almost as complicated or expensive as a court case. Some will result in a ruling which is binding on the parties, so the procedures are not without risk. The parties may be contractually obliged to follow ADR – many contracts contain a clause dictating the course of action for the parties to resolve a dispute.

The aim of ADR is to reach a settlement or, at a minimum, thrash out the issues so only those that are honestly in dispute are brought before the court.

ADR is not compulsory but a party who unreasonably refuses ADR exposes himself to cost implications. In reality, ADR is more likely to achieve your client’s goals than litigation and in commercial relationships an amicable, early compromise is often more desirable than a lengthy battle.

ADR should be considered at the outset then reviewed throughout the course of the case. It is a nice one to remember in exams – if you get a ‘what would you consider at this stage’ or ‘what action would you take’ question, adding consideration of the possibility of ADR, if appropriate, will get you a few brownie points.

Pre-issue considerations are really where your case is built. There is some manoeuvrability later on but, in reality, what you do at the early stages has a big impact on your chances of success. It may not win you the case but it certainly can lose it for you!

In my next post, I will be looking at the dreaded solicitors’ accounts rules and will provide you with a few tips for double entry accounting (groan!).