Strategic Litigation Considerations

Assessing Merits Before Litigation

Strategic Considerations on Litigation: Perhaps unsurprisingly, seasoned practitioners know that the pre-action stage is more than just a procedural step; it is one of the most strategically significant points in civil litigation. In fact, many disputes are won—or lost—before a claim is ever issued.

Evaluation of Merits Prior to Proceedings: Prior to preparing a Letter of Claim, solicitors should consider carefully both the legal and factual merits of instigating proceedings.

This includes considering:

• whether all elements of the cause of action can be established;
• the quality of available evidence;
• potential defences;
• limitation issues;
• jurisdiction; and
• the commercial value of pursuing litigation.

Objective assessment at this stage often prevents clients from incurring substantial legal costs pursuing claims with limited prospects of success.

Preserving Evidence

Evidence should be preserved from the earliest opportunity.

Electronic communications, contracts, photographs, financial records, internal correspondence and contemporaneous notes frequently become decisive during disclosure.

Failure to preserve relevant documents may not only weaken the substantive case but also expose a party to allegations regarding disclosure failures or adverse inferences.

Considering Commercial Objectives

Clients frequently focus exclusively upon "winning."

However, litigation rarely exists in isolation.

Commercial relationships, reputation, regulatory obligations, cash flow, management time and litigation risk frequently influence what constitutes a successful outcome.

Consequently, experienced litigators distinguish between legal success and commercial success.

A negotiated settlement preserving an ongoing business relationship may ultimately deliver greater value than obtaining judgment after several years of expensive litigation.

Maintaining Credibility

Consistency is essential.

The views adopted in pre-action correspondence often find their way into witness statements, pleadings, and trial evidence.

This is because if inconsistent allegations, inflated losses, or unsubstantiated claims are subsequently made, they will undermine the party's credibility when they must appear before a judge to argue their cause IDR Law.

This means that solicitors should be aware that every factual allegation made at the pre-action stage must ultimately, in due course, be proved with admissible evidence.