3 February 2012 by

Lay your cards on the table………

Litigating any dispute can be a long and costly process and, of course, there are no guarantees of success. As such everything is in the preparation and knowing your opponent’s case is just as important as knowing your own. Armed with all the facts, figures and legal arguments a potential litigant will be in the best possible position to take a reasonably informed decision on whether to pursue or defend a claim.

Of course obtaining all the facts and figures is usually easier said than done! Fortunately statute together with the court rules, the Civil Procedure Rules (‘CPR’), offer a potential claimant an avenue through which he or she can obtain an order of the court, pre-commencement of the claim, compelling a potential defendant to disclose documents relevant to the issues at hand.

A regular feature of the litigation process itself is the stage known as ‘disclosure’, litigation these days being very much of a “cards on the table” exercise. What this means is that once a case is up and running all parties to that claim will be required to disclose to each other details of documents it holds relevant to the claim and to provide copies if requested. The process requires a party to disclose not only those documents upon which it relies, but also those which:

(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case.

As such being able to see the documents before commencing a claim could provide a potentially valuable insight into the likely prospects of success. The pre-action disclosure procedure is therefore a very useful tool in the dispute resolution process, particularly in the present economic climate when funds may be tight and potential litigants are likely to think twice before committing money to a claim.

In many types of claim a ‘pre-action protocol’ applies such that the parties must comply with various preliminary steps before a claim is brought to court. The protocols generally entail something akin to the disclosure process described above. However, even where a protocol does not apply, the parties are nevertheless expected to adhere to general litigation conduct principles, one of which is the early exchange of information (the ethos being that the parties are encouraged to resolve their differences without resort to court action). Where a request for documentation in these circumstances is met with a refusal, a potential litigant has the ultimate weapon of an order of the court to sanction the delivery-up of the documents.

However, “what the law giveth, the law taketh away” in that there is something of a sting in the tail in this useful little remedy. Unlike the general rule in litigation that the court will award costs to the party who is successfully granted his order, the rule in claims for pre-action disclosure is reversed. The CPR provide that the party against whom the order is made will usually be entitled to recover his costs of the application and for complying with the order – i.e. disclosing, and providing inspection of, the relevant documents. It is generally only where a recipient of such order has unreasonably and unsuccessfully opposed the application or has failed to comply with a pre-action protocol that the court will exercise its discretion to deprive that party of his costs.

All in all the emphasis has to be upon communication and negotiation throughout the dispute resolution process, before as well as after a claim is issued, to try to gain the co-operation of an opponent. Where talks break down pre-action and a party needs to establish the elements of certainty and clarity before committing resources to a claim, an order for pre-action disclosure may be just the ticket. However, that could be an expensive journey to make!

20 January 2012 by

Baby, it’s cold outside….

With the cold weather around the corner, snow and ice is a particular concern in the property sector. Injuries to occupiers or visitors are both distressing to those involved and potentially expensive for the responsible party.

27 January 2012 by

First Hector, now Moira

In January thoughts often turn to matters of tax as this is the last month in which you can submit an electronic tax return for the previous tax year. While many returns are submitted with tax paid months ago, January is still the busiest time of year for accountants and tax practitioners.

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