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Litigation Strategy

Options for a Claimant Disputes are not resolved, nor are cases won and lost, on legal arguments alone. Those arguments, along with the arguments of fact, must be deployed strategically. In particular, it is important to understand that the decisions you make at one stage of the case may have a significant impact on what you can and cannot do down the line. Over the next two months we will look at some of the key strategic concerns for both sides to any dispute. We will turn to the defendant next month, but the logical place to start is with the tactical issues confronting the claimant.

"No one starts a war ? or rather, no one in his senses ought to do so ? without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it."

Carl von Clausewitz, "On War"

Carl von Clausewitz was a leading military thinker during and immediately following the Napoleonic wars. His text, "On War", is still acknowledged as one of the principal works on the strategy of conflict: Eisenhower referred to it almost daily, both during his time in the military and as US President. Many of the messages that it contains are relevant to the types of legal conflict that we are now starting to see. In particular, these questions of the goal of litigation and how the litigation is to be conducted are vital to any claimant. Even where the legal and factual issues are straightforward, the dynamics of the claim can be complicated. Those dynamics evolve and change over time, meaning it is impossible to predict every eventuality at the outset. But a claimant that has thought ahead, that has addressed what it intends to achieve and how it is to go about it, is far more likely to be successful. Consider the following questions, and how they relate to one another.

What steps should you be taking first?

This question needs to be broken down into internal and external steps.

It is important immediately to suspend any document destruction policy that may affect material that can be called for on disclosure. Few things will annoy the court more than to find out that a party, knowing litigation was coming, has destroyed relevant evidence. Disclosure is something that a solicitor should raise at an early stage with his client.

Privilege immediately becomes an issue. The legal or litigation privilege of documents that have been and will be created is important; no assessment of the merits, strengths or weaknesses of the case should be created outside of a privileged context. Again, the question of when privilege arises and when it might be lost depends upon the forum. Always think broadly in assessing threats to privilege. Remember that you may not always find yourself litigating in the UK. To the extent that claims may arise elsewhere, what are the risks of a disclosure application there?

What must you do before you can commence proceedings? Is there an obligation to enter into talks? What about mediation? To the extent that you want to bypass those steps, is that possible? Once again, where you intend to sue may well drive the answer to these questions. If a claim is brought in England, an obligation to enter into talks is not enforceable whereas an obligation to mediate is But where the claim is before the courts and there is an application for summary judgment, you may be able to avoid even the obligation to mediate.

Do you want to bypass these preliminary stages? Maintaining a dialogue can be the most efficient and effective way of resolving a dispute, even after the commencement of litigation.

Where do you sue?

The steps we have looked at so far have pointed to this as a significant early question. A number of factors will determine the answer.

A choice of forum clause in any contract will clearly be significant;

Think about what law you want to govern the dispute. Choice of law rules may vary from forum to forum. Even if those differences are only subtle, they may be critical. Commencing your claim in a different jurisdiction may help you to secure your preferred choice of law;

Look at the question of costs: how expensive will this be, and are costs recoverable. The total cost will turn, in part, on how long proceedings are likely to take, the scope of disclosure that will be ordered and the availability of summary remedies, such as summary judgment or strike-out;

Consider who the likely parties are and whether any of them are necessary. If there are necessary parties, it may be easier to commence proceedings in a jurisdiction where they can easily be sued;

How important is disclosure to you? Consider both the disclosure you will be seeking from the other side and the disclosure they might seek from you, since disclosure obligations tend to be the same on both sides (a fact that can be overlooked). Deposing the other side’s key witnesses may be very attractive; deposition of your own may not. You may feel that the other side has documents that you would like to see, but are there documents in your own files that you need to protect from disclosure? Also keep in mind that the timing of disclosure may be important ? can you apply for pre-action disclosure, orders and the like? Do not be afraid to revisit your answers. Different systems have different approaches; where you end up may drive, and be driven, by your document retention policy.

Where are the documents and witnesses located? This will turn, possibly in large part, on the issue of what you are suing for, and so again you need to be thinking ahead to your cause of action. If witnesses have to travel some distance for a hearing, the cost and inconvenience (particularly if visas are involved) will escalate. Such costs may or may not be recoverable;

Consider what remedies you are seeking, both interim and final, especially if it is proprietary in nature. Availability of remedies will turn in part on the basis of your claim and in part on where you bring it: certain jurisdictions simply do not recognise certain remedies. A related question is whether you will be awarded compound or simple interest. Particularly in litigation which has been on-going for a number of years, this can be a very sizeable difference. Finally, look at where the defendants’ assets are located and consider how easy it will be to enforce any judgment once you have it.

Who do you sue?

By and large, the fewer defendants that you have, the more straightforward the jurisdictional and choice of law issues become, the cheaper the proceedings are and the quicker you can have them resolved. At the same time, should you miss any necessary party, and find that they are not amenable to the jurisdiction you have selected, your entire case may fall apart.

What are you suing for?

One often hears lawyers talking about a contract claim or a tort claim or a restitution claim, as if that claim could have been brought in no other way. That is rarely the case, however. The facts underlying the claim are set; they have happened in the past and cannot be changed. But the same facts can give rise to a variety of legal consequences. Take as an example the situation where there has been a misrepresentation made before the contract that is then repeated as a warranty in the contract. Is your claim for pre-contractual misrepresentation or for breach? It is important to consider all of the consequences of bringing your claim on a particular basis before doing so. Think of how it will affect the choice of law (and how that plays into the forum equation, what remedies might be available which will be a further factor driving your choice of forum). Keep in mind, also, that the basis of the claims may shift the focus and scope of disclosure and witness evidence because it may shift the time period that is relevant, in our example, from the period prior to formation, in the case of pre-contractual misrepresentation, to the point of formation and beyond, for breach.

How are you handling the public relations?

Some types of proceedings are confidential; many are not. Keep in mind that there may well be a PR angle to all this that will need to be managed and managed well. A party that sues because it has suffered considerable losses on an investment product may find itself the subject of intense speculation in the markets. How will that speculation be handled? The party that alleges that it has been misled in making its investment decisions may, to the extent that it has passed on that misleading advice, find itself facing claims on the basis of those same misrepresentations.

Settlement

For a book entitled "On War", possibly the most striking point does not concern any military resolution at all: "the original means of strategy is a victory ? that is, tactical success; its ends … are those objects which will lead directly to peace." There will be times, particularly in the context of insolvency or fraud, where settlement is simply impossible and the parties will need court resolution to their dispute. Such cases should be the exception. Litigation is expensive, attritional and demanding on the parties' resources. However good your case, however good your advocates, there is always uncertainty and this promises to be a period where that uncertainty is particularly acute. In any dispute, therefore, making the room and the time for a dialogue to continue is extremely valuable. Remember that you may well have to deal with the same people that you are now suing for the next five, ten or twenty years. Whilst no-one is yet sure what the future economic landscape will look like, we are all sure that there will be one. Alienating your future business partners is unlikely to make it any more hospitable.

Conclusion

The claimant, then, has much to think about before beginning any action. Moreover, the various elements, as we have seen, are inter-linked. The question of where you sue will depend, in part, on the remedies that are available to you; the remedies that are available will depend upon the law governing the contract; the law governing the contract will be determined by the choice of law rules in the forum where you have sued. The inter-connection is almost endless. The key, as von Clausewitz noted, is preparation. Be clear both what you intend to achieve through any claim and how you intend to go about that. You should aim to leave as little strategic ground open to the defendant as possible. As we will see next month, defendants have their own tactics for resolving the dispute, and they present a very different picture to that set out by the claimant.

Source: Practical Law

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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