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
Wednesday 24 May 1995
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.
Compare with the Independent: See how much you could save by switching credit cards. Compare now
- 1 International Women's Day 2014: The shocking statistics that show why it is still so important
- 2 Australian man Rod Sommerville reacts to bite from deadly snake by reaching for cold beer
- 3 Teacher shows sex tape featuring herself to pupils during class by mistake
- 4 Singapore sting: Sky-high prices are pushing locals to the edge of affordability
- 5 Exclusive: UK banks in row over Yulia Tymoshenko 'millions'
Britain's top vet sparks controversy with call for ban on slashing animals' throats in 'ritual' slaughters for halal and kosher meat products
If you're horrified by a flame-roasted dog, you should be shocked at a hog roast
Poor 'live like animals' says Boris's privately educated sister after going on 'poverty safari'
Exclusive: Impact of immigrants on British workers ‘negligible’
Vince Cable: Teachers 'know absolutely nothing' about the world of work
Ukraine crisis: Russia pledges to 'retaliate against sanctions' as Ukrainian president says Crimea vote will not be recognised
iJobs Money & Business
£32000 - £36000 per annum + generous benefits: Pro-Recruitment Group: * TAX * ...
£55000 - £70000 per annum + benefits: Pro-Recruitment Group: In-House Corporat...
£80000 - £100000 per annum + benefits: Pro-Recruitment Group: In-House Opportu...
£30000 - £35000 per annum + generous benefits: Pro-Recruitment Group: Mixed Ta...
Day In a Page
A seven-bedroom Grade II-listed property with a separate self-contained apartment
A five-bedroom Victorian house with three reception rooms and galleried landing, £695,000
A six-bedroom farmhouse with five acres of land in a former cloth-making village
A secluded seven-bedroom detached house with large private garden, £490,000
A three-bedroom cottage overlooking Sarratt village green with open fires and solid oak floors
A three-bedroom maisonette flat in a Grade I-listed, Georgian townhouse in a sought-after location
A one-bedroom apartment located within a private gated development, north of Turnham Green
Look forward to a brighter future at two-bedroom Sunny Cottages, ideal for Londoners looking to downsize
A three-bedroom red-brick cottage with outbuildings and pretty gardens, £200,000
This three-bedroom flat within a former textile factory spans the corner of the fourth floor and has a balcony
A charming four-bedroom Oxfordshire cottage with oak floors and chunky-beamed ceilings, £465,000
A beautiful one-bed flat in a sought-after portered block, with access to Norland Square communal gardens
A one-bedroom flat within a Sixties school conversion with high-spec design and open-plan kitchen, close to Lambeth North Tube, £435,000
A 17th century four-bedroom house, with open fireplaces, cellar and pool, £600,000
A three-bedroom, coach house with luxury open-plan living space and contemporary breakfast bar
A newly refurbished one-bedroom flat in the heart of Mayfair, close to Grosvenor Square
A charming four-bedroom house overlooking Burleigh Square Park, close to Thorpe Bay
A three-bedroom farmhouse with a large inglenook fireplace and exposed beams
A boutique mews house, set around a central courtyard, with three bedrooms and a private roof terrace
A four-bedroom farm-conversion with three bathrooms and two reception rooms
A two-bedroom detached house with ensuite bathrooms and a sun-drenched decked terrace, £750,000
A modern and spacious two-bedroom, penthouse flat with two bathrooms in a prestigious development
A beautifully renovated five-bedroom terrace with three reception rooms and a courtyard garden, £700,000
A four-bedroom period house which has been extended to provide almost 2,500sq ft of living space, £675,000
A pretty three-bedroom Georgian home with a 22ft drawing room and a master suite with a balcony, £525,000
A substanstial family home with five bedrooms and landscaped gardens in the much sought-after Branksome Park area
A well-presented three-bedroom house with front and rear gardens, close to White City station, £475,000
A handsome five-bedroom house in a sought-after location close to the city centre
A five-bedroom country home with valley views, equestrian stables and 27 acres of land, £725,000
A six-bedroom farm house with separate, detached cottages and 371 acres of land
A two-bedroom cottage with parquet floors, chunky beams and an open fireplace
A three-bedrrom flat with 2,733sq feet of living space, a beautiful private garden and 15 acres of communal grounds
A four-bedroom chalet bungalow with three bathrooms and a spacious garden, £525,000
A two-bedroom flat with an open plan kitchen and two balconies, close to Arsenal station
A Grade II-listed home with six bedrooms, secluded landscaped gardens and views across Hadley Green
A Grade II-listed mansion with two apartments and a cottage, near Gretna Green
A three-bedroom Grade II-listed mews house with vaulted ceilings and roof garden
A spacious Grade II-listed family home with annexe and equestrian facilities among four acres of land in Itchingfield
A four-bedroom home with exposed brick walls and open fires in the picturesque village of Northill
A Grade II-listed property with five bedrooms and unique tower, overlooking Hastings Old Town