One interesting and slightly unusual matter that clients sometimes don't take into consideration is the importance of strategy and tactics in litigation.
From time to time you will be faced with a step which is unusual not generally taken by lawyers but if followed in the appropriate way can save the client considerable time and money.
A case we had that just finished about a month ago was for an international company that has a brand that is famous to all which was fighting a trademark application lodged by a competitor, was a trademark opposition, a relatively simple matter however that simple matter which was won by us in the Trademarks Office escalated into a Federal Court Appeal by the other side – significant case – very significant costs were at stake and we won that case in the Federal Court by a very nice judgment in our favour.
The other side then lodged an appeal to the Full Federal Court and when you lodge an appeal to the Full Federal Court you have to seek leave to appeal and the usual advice one gives to clients when leave to appeal has been lodged is it is very hard to fight those, they are almost always granted and the usual process is to agree that the leave to appeal application will be heard at the same time as the actual appeal. It saves time, saves costs and you know that what is really going to happen is that the appeal itself explains to the judges why leave to appeal should have been granted and the whole case is heard at the same time.
We took the very unusual step in this case of saying to our client effectively you ought to fight the leave to appeal as a separate hearing. You would give our client the chance to focus the judge's attention solely on the application for leave to appeal – the client had been alerted to the fact that winning leave to appeal applications when you are fighting the appeal is extremely rare.
For a number of reasons the client accepted that advice and we fought the leave to appeal application – the client expected after we fought the application that we would go down and we would have to fight the appeal itself in a few months. We were very relieved and surprised to find that we actually won the leave to appeal application. What that meant is that the application by the other side to get the right to appeal to the Federal Court was refused and the case finished on the spot.
There were no further appeals possible, by taking this very unusual step we saved the client probably hundreds of thousands of dollars, an enormous amount of executive time in preparing for the Federal Court Appeal to the Full Federal Court and taking a step that was extremely unusual.
So, what it tells you, the lesson that I have learnt and I think clients could learn from is that sometimes in litigation taking unusual steps and following strategic advice designed to benefit the client sometimes in unusual ways can have a very large payoff indeed.
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