Going to court? Don't score an own goal

If you are looking to the law to resolve a dispute, plan each step with care

Litigation has much in common with horse-racing and the football pools, two other popular forms of gambling. The more you study the form, the greater the chances of success. As the protagonists in the Saatchi & Saatchi dispute have discovered, litigation can be costly, time-consuming and unpredictable. It need not necessarily be so.

The purpose of litigation is to resolve disputes. A writ is rarely served with a view to spending weeks in court. Often the main objective in beginning a court action is to put pressure on an opponent to come to a realistic settlement. Some cases do not advance much further than the issue and service of a writ; most settle before trial and the objective is achieved. However, many are caught in a procedural log-jam, and a satisfactory result is obtained only at great cost.

Potential litigants should consider some basic points before charging headlong into a courtroom battle.

Know your opponent. There is little point in pursuing an opponent who is unable to pay, although the recovery of money is not every litigant's objective. For some it is to protect the poaching of clients or employees. For others, it is the chance to clear their name in the light of a perceived slur or to protect an investment in a novel idea.

It is important to understand from the outset of litigation that parties have different strengths and weaknesses. A company's legal costs will be deductible for corporation tax purposes, whereas those of a private individual cannot be deducted for income tax purposes. A business can usually reclaim VAT, whereas an individual cannot. On the other hand, often the most significant asset of a business is its personnel. It may be expensive for it to commit management time to dealing with the litigation. A former employee with more time on his hands may try to exert pressure by taking up management time.

Acknowledge the potential of publicity. Details of claims made in the High Court and in an industrial tribunal can be found through a search of public records. The media regularly monitors these records. A case involving a household name or a newsworthy issue is often reported without either party generating the publicity. It is not always possible to prevent a private dispute becoming public. As a result, a threat to issue proceedings can bring a publicity-shy opponent to the negotiating table.

Recognise your own weaknesses. No claim is a certain winner. Many commercial causes succeed or fail on the basis of documentary evidence. Both parties must disclose the existence of all relevant material. The parties then have an opportunity to inspect that evidence. The result is that unhelpful documents could end up being shown to the opposition. Confidentiality will not prevent a document's disclosure. It is crucial to identify evidence that harms your case before it has to be disclosed to the opposition. Its effect on the prospects of success can then be measured. The consequences of failing to appreciate the damaging effect of your own documents can be a humiliating climbdown, as British Airways found to its cost in the dispute with Virgin.

Do not provide the opposition with ammunition. Disclosure is an ongoing obligation throughout the proceedings. Although evidence must not be destroyed, documents which will have to be disclosed should not be created unnecessarily. For example, care should be taken when circulating information about a case around a company or when discussing proceedings at board meetings as internal memoranda and board minutes are relevant documents. It is best to limit board discussions to a report on the stage reached in the action or a summary of legal advice received. If the meeting considers the merits of the claim or the implications of a lawyer's advice, the minutes may have to be disclosed, thereby giving one party an invaluable insight into the other's strategy and thinking.

You've started, so you should be prepared to finish. Litigants sometimes assume that having started proceedings they can always withdraw. That is generally true, but the penalty is that the party withdrawing has to pay the costs of the opponent, unless a compromise can be reached.

Like the Grand National or the Cup final, the result of litigation is never certain. However, with a little thought and planning, you can at least be backing an evens favourite rather than a rank outsider.

The writer is a solicitor and commercial litigation specialist with the City law firm Fox Williams.

Independent Partners; request a free guide on NISAs from Hargreaves Lansdown

Flocking round: Beyoncé, Madame Tussauds' latest waxwork, looking fierce in the park
travelIn a digital age when we have more access than ever to the stars, why are waxworks still pulling in crowds?
Arts and Entertainment
Arts and Entertainment
Judi Dench appeared at the Hay Festival to perform excerpts from Shakespearean plays
tvJudi Dench and Hugh Bonneville join Benedict Cumberbatch in BBC Shakespeare adaptations
Is this how Mario Balotelli will cruise into Liverpool?
Ronahi Serhat, a PKK fighter, in the Qandil Mountains in Iraqi Kurdistan
Arts and Entertainment
Poet’s corner: Philip Larkin at the venetian window of his home in 1958
booksOr caring, playful man who lived for others? A new book has the answer
Arts and Entertainment
Exhibition at the Centre Pompidou in Metz - 23 May 2012
Matthew McConaughey and his son Levi at the game between the Boston Red Sox and the Houston Astros at Fenway Park on August 17, 2014 in Boston, Massachusetts.
advertisingOscar-winner’s Lincoln deal is latest in a lucrative ad production line
Life and Style
Pick of the bunch: Sudi Pigott puts together roasted tomatoes with peppers, aubergines and Labneh cheese for a tomato-inspired vegetarian main dish
food + drink
Arts and Entertainment
Alfred Molina, left, and John Lithgow in a scene from 'Love Is Strange'
Finacial products from our partners
Property search
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs Money & Business

    Junior Quant Analyst - C++, Boost, Data Mining

    £25000 - £35000 per annum: Harrington Starr: Junior Quant Analyst - C++, Boost...

    Service Desk Analyst- (Desktop Support, Help desk)

    £25000 - £35000 per annum: Harrington Starr: Service Desk Analyst- (Desktop Su...

    Junior Quant Analyst (Machine Learning, SQL, Brokerage)

    £30000 - £50000 per annum: Harrington Starr: Junior Quant Analyst (Machine Lea...

    UNIX Application Support Analyst- Support, UNIX, London

    £45000 - £55000 per annum: Harrington Starr: UNIX Application Support Analyst-...

    Day In a Page

    Air strikes? Talk of God? Obama is following the jihadists’ script

    Air strikes? Talk of God? Obama is following the jihadists’ script

    The President came the nearest he has come yet to rivalling George W Bush’s gormless reaction to 9/11 , says Robert Fisk
    Ebola outbreak: Billy Graham’s son declares righteous war on the virus

    Billy Graham’s son declares righteous war on Ebola

    A Christian charity’s efforts to save missionaries trapped in Africa by the crisis have been justifiably praised. But doubts remain about its evangelical motives
    Jeremy Clarkson 'does not see a problem' with his racist language on Top Gear, says BBC

    Not even Jeremy Clarkson is bigger than the BBC, says TV boss

    Corporation’s head of television confirms ‘Top Gear’ host was warned about racist language
    Nick Clegg the movie: Channel 4 to air Coalition drama showing Lib Dem leader's rise

    Nick Clegg the movie

    Channel 4 to air Coalition drama showing Lib Dem leader's rise
    Philip Larkin: Misogynist, racist, miserable? Or caring, playful man who lived for others?

    Philip Larkin: What will survive of him?

    Larkin's reputation has taken a knocking. But a new book by James Booth argues that the poet was affectionate, witty, entertaining and kind, as hitherto unseen letters, sketches and 'selfies' reveal
    Madame Tussauds has shown off its Beyoncé waxwork in Regent's Park - but why is the tourist attraction still pulling in the crowds?

    Waxing lyrical

    Madame Tussauds has shown off its Beyoncé waxwork in Regent's Park - but why is the tourist attraction still pulling in the crowds?
    Texas forensic astronomer finally pinpoints the exact birth of impressionism

    Revealed (to the minute)

    The precise time when impressionism was born
    From slow-roasted to sugar-cured: how to make the most of the British tomato season

    Make the most of British tomatoes

    The British crop is at its tastiest and most abundant. Sudi Pigott shares her favourite recipes
    10 best men's skincare products

    Face it: 10 best men's skincare products

    Oscar Quine cleanses, tones and moisturises to find skin-savers blokes will be proud to display on the bathroom shelf
    Malky Mackay allegations: Malky Mackay, Iain Moody and another grim day for English football

    Mackay, Moody and another grim day for English football

    The latest shocking claims do nothing to dispel the image that some in the game on these shores exist in a time warp, laments Sam Wallace
    La Liga analysis: Will Barcelona's hopes go out of the window?

    Will Barcelona's hopes go out of the window?

    Pete Jenson starts his preview of the Spanish season, which begins on Saturday, by explaining how Fifa’s transfer ban will affect the Catalans
    Middle East crisis: We know all too much about the cruelty of Isis – but all too little about who they are

    We know all too much about the cruelty of Isis – but all too little about who they are

    Now Obama has seen the next US reporter to be threatened with beheading, will he blink, asks Robert Fisk
    Neanderthals lived alongside humans for centuries, latest study shows

    Final resting place of our Neanderthal neighbours revealed

    Bones dated to 40,000 years ago show species may have died out in Belgium species co-existed
    Scottish independence: The new Scots who hold fate of the UK in their hands

    The new Scots who hold fate of the UK in their hands

    Scotland’s immigrants are as passionate about the future of their adopted nation as anyone else
    Britain's ugliest buildings: Which monstrosities should be nominated for the Dead Prize?

    Blight club: Britain's ugliest buildings

    Following the architect Cameron Sinclair's introduction of the Dead Prize, an award for ugly buildings, John Rentoul reflects on some of the biggest blots on the UK landscape