No Points for Coming Second

What most litigation cases have in common is that one party wins, one party loses and the losing party pays the winning party’s costs. Whilst a great deal of lawyers are trying to get to grips with the new costs budgeting regime we now endure, a lot of lawyers are forgetting the brass tacks of litigation itself and the fundamental basics of getting a case right at first instance. Pleadings, witness statements and experts reports should all converge into one singular truth, with the different documents complementing each other as opposed to being contradictory, or leaving holes in the case. What this calls for is careful planning and a good deal of thought in terms of what it going into the claim, who is going to evidence the facts and what are their strengths and weaknesses. This is a good starter for five on the road to success, but often neglected and as such certain sure to cause problems further down the line.

If the case is prepared properly from the outset, a much a greater use can be made of the Pre-Action Protocol meeting not only to get your case across to the other side but also to assess the strength and merits of the other side’s claim and as importantly, asses their witnesses who preferably should be in attendance at that meeting.

All too often Pre-Action Protocol meetings are unstructured and are simply a means for complying with the Pre-Action Protocol itself in order to allow parties to commence litigation. I would suggest that far greater emphasis should be put on the same and there be a series of meetings as opposed to the one prescribed meeting under the rules with, ideally, a route through to mediation. On this note there is nothing preventing any party from detailing in the contract that mediation must occur if a dispute arises, and due consideration should be given to the role of “a binding mediation” clause in the terms and conditions.

What the insurance industry will eventually focus on if the approach we adopt becomes more universal, is the ATE protection (After the Event Insurance) stage of premiums will be triggered a lot earlier than as is normally the case now, whereby the premiums really start ratcheting up after proceedings have been issued.

The above approach is designed to avoid litigation but then againsuch approach leaves some very happy clients and not ones that are having to analyse cost managements budgets or indeed picking the pieces up if things have tragically gone wrong. Be aware that as many cases are won on oral evidence as they are on reports/contracts, and as such the “sure winner” can often turn out much the opposite if your witness turns to jelly under cross examination.

If you have any queries concerning your claim, dispute, or contracts please do not hesitate to contact Giles Ward on 0113 245 0845 or or or


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