In brief - It is best to take a practical approach to disputes
to avoid lengthy and costly litigation
By conducting investigations quickly, making early settlement
offers and being flexible in your proposed settlement terms, you
have the best chance of resolving disputes early.
Conduct investigations as quickly as
If the matter is not litigated, investigations can take
significant time. Freedom of Information (FOI) requests can take
months and information will not be readily available. Often the
best experts will also not be available at the drop of a hat and
enquiries should be made well in advance.
If the matter is litigated, it assists to request copies of key
documents with the initial request for particulars. Making calls to
potential subpoenaed parties prior to issuing subpoenas may also
assist to ensure that you are not sent on a wild goose chase or
left waiting for information that will not be produced.
Attempt to form views on the information you do
While it will not always be possible to determine the ultimate
legal outcome of proceedings until very late in the day (sometimes
not until a High Court judgment), it is usually possible to assess
from an early stage whether a claim or proceedings have any
In some cases, it is also possible to gain a reasonable idea of
what a claim is worth early on, for example by making phone calls
to experts for a quick chat or speaking to the client for a best
guess as to quantum.
Make early settlement offers
If a claim is considered hopeless, there is usually benefit in
making a "walk-away" offer in order (hopefully) to
provide some level of costs protection and also to emphasise the
costs risk to the other side. It is a good idea to set out a
reasonable estimate of your legal costs spent to date in order to
make this clear and to avoid dispute later on. Such an offer
together with a persuasive Calderbank
letter may even avoid legal proceedings altogether.
If a claim is arguable, then it can be beneficial to at least
seek to cover off the risk of a "best case" losing result
at an early stage (depending on the circumstances). This will
create some pressure for the other side from a costs protection
perspective and encourage the other side also to consider their
If a claim is on balance a likely losing result, there is likely
to be little to be gained by litigating it to death in the hope of
a reduced settlement down the track. The more likely outcome is
that legal costs on both sides will make the case uneconomic to
If the other side is being unrealistic, then there is much to be
said for putting your best foot forward with a strong offer at an
early stage to cover off the risk of years of future legal costs
and/or a hearing.
Avoid interlocutory disputes
Filing motions can sometimes be a good way to dispose of
hopeless claims swiftly; however, they often result in significant
delay to proceedings and costs mounting on both sides. A carefully
worded letter asking the other side to reconsider their position in
light of X may be the solution and result in a concession being
made, rather than having a lengthy fight over a relatively small
Be flexible in your proposed settlement
While it is often beneficial to make offers on an
"exclusive of costs" basis for the purpose of costs
protection, it also assists to make an alternative offer at the
same time which is inclusive of costs. In order to do so, you need
some basis for an assessment of the other side's costs (for
example, by requesting an itemisation or rough estimate prior to
making the offer).
The benefit is that the "inclusive" offer may be
closer to the ultimate total figure sought, may encourage the other
side's legal representative to compromise their own costs and
may also avoid the expense of further disputes over costs down the
Consider whether there is some other solution to make the offer
attractive - for example, by way of an apology or retraction in a
defamation matter, by all defendants pooling their resources in
difficult multi-party litigation, or by insurers discussing matters
between themselves under the Cross
Liability Claims Protocol.
If you are seeking to obtain a settlement deed, consider whether
an indemnity is necessary or whether the other side would be
willing to forgo any future claims against other parties.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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