Understanding what you need to do when faced with the prospect of litigation is essential for in-house counsel. In this session Ana Lelliott provides her top tips for dealing with commercial disputes, discusses when to litigate or consider alternative options and provides a quick refresher on privilege and without prejudice.
James Hall: Good morning everyone, and welcome to our webinar this morning - Litigation Survival Guide. This is the first in the series of three webinars that we are running this autumn in place of our usual in-person ThinkHouse Foundation events. My name is James Hall and I am one of the co-chairs of ThinkHouse Foundations. I am a senior associate in the Employment Team here at Gowling WLG and as you have joined us today hopefully you will already know that ThinkHouse Foundations is our programme aimed at in-house lawyers, the more junior end ranging from trainees and paralegals up to lawyers around five years PQE. I hope you will be able to join us for the other webinars that we are running in the series this week. Tomorrow and on Thursday at the same time as today's webinar. Tomorrow's webinar will be delivered by my teammate Jasmine Coyne on returning to the office and some employment law issues for you to consider. And on Thursday we have hot topics in data protection delivered by my colleague, Claire Van Ristell. And if you are unable to join those webinars live, then there will be recordings available so do take a look at those when they come through to your inbox.
So onto today's topic - Litigation Survival Guide. I am joined by Ana Lelliott, a senior associate in the Disputes Resolution Group here at Gowling WLG and she is based in our Birmingham office. Ana is going to give you her do's and don'ts and talk about whether to litigate or not in the first place and also she is going to touch on privilege and without prejudice. So hopefully you will agree, and that is why you have signed up today, understanding what you need to do when faced with the prospect of litigation is really important for you guys as in-house lawyers at all levels. So we really hope you will find today's session useful. Ana is going to speak for around 30 - 35 minutes and then we will have time for questions at the end and look to draw the webinar to an end at around 11.15.
So that is enough from me and without further ado, I will pass you over to Ana.
Ana Lelliott: Hi everybody. Thank you for that introduction James. My name is Ana Lelliott and as James mentioned I am one of the senior associates in the Dispute Resolution Group here at Gowling WLG. I will be talking to you about litigation survival guide. As a litigator, I appreciate that litigation and going to court is not something that most people like or enjoy so hopefully I will be able to share some tips with you to alleviate any fears. So the first thing that I will do is go through some practical tips, the do's and don'ts. I will also talk to you about whether to litigate or not to litigate and what alternatives you might have if a dispute arises. I will touch upon privilege because obviously it is extremely important to you as in-house counsel and also on without prejudice.
So kicking off - my practical top tips. I have set them all out here. There are five and I will go through each one of them in turn and to summarise they are:
- don't dither;
- take into consideration service and protocol;
- try and put together a chronology;
- think about insurance, whether you have any, could it help you;
- and also give some thought to limitation and jurisdiction.
So starting off with the top tip "Don't dither". I think that is a very pithy way of saying that, time really is of the essence and is very short. So when you are dealing with a claim form for example, you need to act promptly but not in haste. You have 14 days to file an acknowledgement of service and a further 14 days to file a defence. So it is extremely important that if you are unfortunate to receive a claim form, have a look at the dates and keep a note of when you receive the claim form and how (and I will touch upon that in a minute) but diarise the times when you are due to respond. Because the consequence of ignoring a claim form is that the other side may make a very straightforward procedural application to have judgment in default entered against you. The only way that you can get rid of that is to make a court application to set aside the judgment in default. And to give you an idea of the cost of that, a very straightforward application to set aside a judgment in default can be as much as £10,000 so really it is not worth taking the risk so do put those deadlines in your diary and act on them.
In terms of a letter of claim, if you receive a letter of claim rather than a claim form, usually at the end it will say when a response is required. Again, diarise that. If you are about to go on holiday or there is holiday season or the time limit that is being asked of you to comply with is unreasonable, then again, do not just simply ignore it and go 'well this can wait', put together a very short response to say that the time that you have given us to respond is unreasonable, we cannot get back to you but we will endeavour to respond within the next month or whenever it is that you can and then diarise that. What I would say is that usually 14 days is reasonable in other circumstances, it could be as much as 21 days. Seven days is rarely considered to be reasonable unless there is a contract that is payable on demand and in certain circumstances that may be considered reasonable.
The consequence of not responding to a letter of claim is not as bad as not responding to a claim form but it can still be tricky because the other side could issue a claim without any further recourse to you and that effectively puts an end to the pre-action correspondence period and your opportunity to resolve things without resorting to court. And one of the things that a letter of claim will usually say is, that if you ignore it, you could be penalised in costs. So the court rules that we use a litigation make it very clear that the parties are obliged to engage in pre-action correspondence and try and resolve things without going into court. So if you are basically ignoring the letter of claim and not engaging in that, then the court does have discretion to penalise you in costs. So there is no need to be in that situation, try and resolve the dispute beforehand and do engage in a letter of claim. Even if it is just simply to say, we do not think you have a good claim, try again.
So my next top tip is in relation to service. The claim form needs to be filed at court and served on you. What I would say about service is that, I mentioned earlier the court rules, the civil procedure rules, are effectively a guide to litigation and how to litigate. They are extremely prescriptive in respect of service. The rules set out how the claim needs to be served on who and when. There are different ways of service, one of them as you image is first class post. However the court rules have not moved so far ahead that for example, faxing a claim form is still a valid form of service whereas email is not and I will touch upon that in a minute. So what you need to do when you receive a claim form is look and keep a note of how it was served on you and when, what was served with it (there should usually be a response pack so it would include the standard defence form, and acknowledgement of service form that should be with it), also have a look at whether the claim form is filed as it is with the brief details of the claim set out within or whether it says 'particulars of claim to follow'. Particulars of claim are basically details of what the claim is that you are facing and they are usually a separate document and sometimes the claim form will say 'particulars to follow', they should follow within 14 days. If you get a claim form and it says the particulars are to follow but then no particulars do follow and that time just lapses, you might have, for example, the right to make an application to the court to strike out the claim, to say it is an abuse of process, you have not received a particulars of claim and it should be struck out. So that is why it is really important to have a look what has come in with the claim form.
Other things to look out for when you receive a claim form is, have a look if, it is has come in by first class post, keep a copy of the envelope. I know in the digital age that sounds really archaic but a colleague did recently have a claim form that was posted allegedly by first class post however the correct postage was not paid. It was 40p short and when it arrived on our client's premises, the client paid the difference, so the 40p, and when they came to us with this issue we immediately were of the view that actually, paying for incorrect postage does not constitute valid service because it has not been served by first class post because it was not the correct amount of money. So what that meant for the other side is that service was invalid, they had to abandon the claim and re-issue. And when we say 're-issue' that means going back to the court and paying a court fee. In that instance the claim was for more than £250,000 so the court fee was £10,000. So it was a very, very expensive mistake to make. So if you are receiving a claim form watch out and keep all details about how you have received it and if you are thinking of filing and serving a claim form, make sure you pay the correct postage.
I mentioned earlier that email is not a permitted form of service. It is not unless you have the consent of the other side. So what that means is that you have to get the other side to expressly say that they agree to you serving a claim form. So if you are about to receive one and you receive it by email and you have not consented to being served by email, then there is scope to say that actually that was not validly served and they need to try again which means that the time does not start running until a valid service is made. This can be implied. Usually that happens when you file a court document by email and you put your email address down on court documents so give some very careful thought whether you want to agree to service by email. And as I have mentioned it can happen by fax so if you work in a business that still has a fax number and certainly some businesses still do and usually a fax number is on letterhead and/or in email signatures then be aware that you could be served by fax.
Next top tip is protocol. So this relates to letters of claim and letters before action. Again the court rules set out various different pre-action protocols that explain the conduct that the parties are obliged to follow and set out the various steps that the court would normally expect parties to take before commencing proceedings. And the idea of these is that, if you follow these steps, then hopefully you should come to a resolution without needing to issue court proceedings. Now a word of caution on protocols generally is that there are 13 different protocols. So when you receive a letter of action and if it does refer to a protocol, make sure to check that it is the correct one do not assume that it is. So to give you an example, I recently acted for a client in respect of a contract dispute and they received a letter of claim referring to the debt protocol but the debt protocol does not apply to business to business in a commercial context it only applies to business to consumer. So it was not the correct protocol to use and certainly, it was helpful to have the upper hand initially on responding to the other side to say, well look, you cannot even get the correct protocol and try again and we do not even have to respond to this. So do check that they are using the correct protocol.
If there is not a specific protocol then the protocol to go off is the practice direction and pre-action conduct and protocols which is just the general protocol and the consequence of non-compliance which I have touched on is that the court has really wide discretion to look at the way in which the parties conducted themselves in the pre-action process. And if there has been a party who has not behaved reasonably or is in default because they have not engaged, then the court can order them to claim indemnity costs which is effectively paying costs at a higher rate. It can deprive a party of interest that it would otherwise receive or it could award interest on al lower or higher rate depending on who it is penalising. So it is worthwhile looking at that and following it closely.
Tip number three is chronology. So this is a really practical tip and it is one that is extremely, extremely helpful to do at the outset because it will help you and your boss and everybody that you are working with. And if you are going to instruct external lawyers or barristers it is an extremely helpful document to go back to because I have no doubt that you have lots of things on your desk at any one time and when you are dealing with a dispute it can be sometimes difficult to remember all the various different details which do matter and the facts. So what a chronology does is it helps you get to grips with what happened and who was involved and you are effectively creating a table of the date, the event and any document that supports it. An in effect it helps you to distil the facts and understand what happened so that when you start looking at what courses of action are available, you know exactly what you facts are. And to use a bit of a cooking recipe analogy, the facts are sort of like your ingredients so, if you want to pursue a certain course of action you can only do so if you have got the relevant ingredients. If you do not, you need to think about what other courses of action you have. And having clear chronology right at the outset really, really helps focus the mind of everybody including the client because if they start sort of staying 'well I want to pursue this' but the facts that you have do not allow you to do that, then again you will be able to find out straight away by looking at that chronology.
One other top tip from a litigator is that, this is literally the first thing that I do every time I get a new case no matter how big or how small. So if you prepare one it is going to save you time and it is also potentially going to save you money because, if you were to instruct a firm of solicitors they would not have to do one, they would have the benefit of yours. If you want to save some more money and time then put an index together and prepare all your documents so that they can be followed through with your chronology which means that all your paperwork is in order and you have all your documents ready to go and look at.
That very neatly brings me into looking at evidence. You can see I have put lots of little stars around the word 'evidence' because it is extremely, extremely important in litigation for obvious reasons. Now what I would say is, get all your documents in order. Usually in this day and age that is emails but thinking about it in the most simple way possible is that you are putting together a story of what happened. Who said what and when. And once you have all that, you are then in a much better place to decide what you are going to do next. So in terms of evidence you are looking at documents, contracts, meeting notes. If your business does a lot of work on various different apps or if you have WhatsApp messages or any other type of social media that you use in the business that might be relevant to the dispute, then that is also a document that you need to think about.
Next tip is insurance. I do not really have much more to add than what is up on the slide in front of you, other than to remind you to check whether there is an insurance policy in the business that can help you out. Because usually most businesses have some sort of insurance in place. They may have legal expenses insurance tagged along onto that or a stand-alone policy. If that is the case, read the policy. Look at the exclusions and speak to your broker and have a look at whether you have a benefit of insurance policy that might be able to assist with resolving the dispute in the most cost effective way. If it is covered, then notify the insurer because if you do not do so, then the insurer may reject the claim.
What I would say in terms of my own experience of dealing with insurance companies in the commercial litigation context is that it is extremely, extremely helpful to do this because I dealt with a case a few years ago where there was a dishonest employee director and shareholder and there was a big dispute. It was all very embarrassing, and he had taken a lot of money out of the company, happened to be the finance director, and so it was a difficult situation. Financially it really did hurt the company quite badly but because the company had the benefit of insurance they were able to recover the sums and did not affect their cash flow going forward so it really did assist. But in the longer term what that meant is the insurers were part of the negotiations to settle the claim with the fraudulent director. So that was a different dynamic so do, do check insurance, it is very important. And I suppose a complete freebie here, if you ever end up in a dispute in a personal capacity, also check your insurance because the likelihood is that you might have legal insurance with a policy without really knowing it so it is worth checking.
Now limitation and jurisdiction. Now limitation as you probably know is what you need to do is check is it about to expire. So if you are looking at a contract claim then you need to be looking at when did that breach take place. If have a long term supplier or customer or there has potentially been, you receive a letter of claim in relation to a breach that has happened a long time ago, dig out the contract that relates to if you have it, have a look at what the contract says and also give real serious consideration when did that breach take place because as you know in contract it is six years from the date of the breach. If limitation has passed then you might have a complete defence to your claim. If it is about to expire then the other side may ask you to enter into standstill agreement. Now it sounds sort of counter intuitive, why would you enter into a standstill agreement, why not just let limitation expire? Again, as a defendant, the reason you would do that is because you would rather try and resolve matters rather than facing Court proceedings against you and if limitation is about to expire the likelihood of you receiving a claim is much more likely because the only way to stop time running is to issue a claim and/or enter into a standstill agreement which effectively means that as the defendant to a claim, you agree not to rely on the expiry of a limitation period from a given date usually the standstill agreement so effectively time stands still and then if you can't resolve matters or you give notice under the standstill agreement that limitation is going to start running again and it starts ticking as of the date of that notice so is usually, as I have seen it work, it is quite helpful to get the parties to focus their minds on resolving the matter in the standstill period rather than going to the cost and stress of proceedings.
Jurisdiction sounds like an obvious one but it is worth looking at whether English Courts have jurisdiction especially if you work in multinational organisation or one that works with lots of different countries. Have a look at whether the English Court is the right place to bring a claim or does your contract, for example, make provision for arbitration. I have recently seen contract make clear that the forum for resolving dispute is by way of an expert determination where effectively the parties to go to an expert and his decision is final and binding and it is much more cost effective so do have a look at what the contract says and equally, whilst this is a litigation point if you are in the business of negotiating contract and writing contract, do give some serious thought to what do you want that dispute resolution clause to look like because litigation isn't the only route and you can put mechanisms in place to encourage the other side and both parties really to make Court the very last resort.
Also look at governing law, check if English law is the governing law under the contract. If not, then you may well have to get foreign law advice.
I have a bonus tip for you here in terms of evidence. I mentioned it already. Evidence and documents are very widely defined term document but it is extremely important in litigation. Preserving documents is key and it is not really a sort of for you in your day jobs but it is really important to make sure that no document destruction processor that you may have in place, routine document destruction policies are suspended if you think that a dispute is brewing or you think it might kick off because you don' want to end up in a situation when you have the explain to the Judge why certain documents that were key to a particular dispute have been destroyed. So don't destroy any documents and ensure that everything is preserved.
Now what I would say is that disclosure obligation is an ongoing one and is defined by reference to document. As I have already said it is very widely defined and basically it covers anything in which information of any description is recorded so it is not just a word document, email or an excel spreadsheet it covers databases, it covers WhatsApp, it also includes the metadata which sits behind for example the documents that we create so if for example you are dealing with a fraud claim you can have a look at when a document was saved, resaved, modified etc. Equally, any video recordings, voice recordings, I dealt with shareholder dispute where the senior executive had ended up in a fight in bar and that video footage was disclosable so really don't think about it just as sort of words on a page, it is much wider than that.
If the case proceeds, you might be ordered to give disclosure of documents and English Courts require very much a cards on the table approach because if you think about it, if everybody knows what they face then you have to disclose documents that support your case, that are relevant and support your case but also support the other's case and not helpful to your case, then the likelihood of a parties' trying to resolve matters and negotiating a settlement before they get to Court increases and so as much as I love law dramas, my main favourite being Suits, for obvious reasons, is it is very very rare in practice that somebody walks into Court waving a 'smoking gun' document. It just doesn't happen because, as I say, there is an ongoing duty of disclosure, it is extremely onerous but that makes it even more important for you to make sure that all documents preserved and that you have got a handle on those in case a dispute arises.
So the next thing I am going to talk you about is to litigate or not to litigate. Now obviously, as a litigator, I am not in the habit of talking myself out of work. However, what I would say to every single client is the first point is, is there scope for commercial resolution to the dispute that you are dealing with? If there is, then let's try and explore that first and often one of the things that I have done in the past is that I work in the background and I help firms put together letters and they then send them out without the other side knowing that lawyers are instructed in the background. But we are there to assist and to help and if that is something that you can make use of then do think about it because litigation is costly and its stressful and we always have to weigh up the litigation risk because you don't know what kind of judge you are going to get on the day and it is something really to bear in mind. There are lots of different alternative dispute resolution routes that you can go down. So, for example, I have mentioned you can just pick up the phone, it can be as informal as that, if you have a good relationship and also if you want to preserve that commercial relationship with the contractor or the supplier on the other side but actually picking up the phone and trying to talk it through your differences might be the best way around it.
If that doesn't succeed, then there are other ways. So, for example, you can look at mediation which is more cost effective, it is a bit more formal but again it is in that pre-action, it can be done in that pre-action stage and so you can think about you know can I reach some sort of resolution, maybe potentially give a discount to the very start rather than incurring legal fees which effectively would be the same or less or more than the discount I am prepared to give.
So what I would say is that do consider alternative dispute resolution and as solicitors we have to consider the cost benefit analysis and if it is not worth litigating we will tell you because it is not in our interest for you to do that and we won't want to run a case that isn't worth fighting or is not going to be cost effective to do so.
Sometimes though however, even if the cost benefit analysis is going to be extremely costly to bring proceedings and financially the numbers are sort of telling you well don't litigate there may be other reasons why actually you have got no choice, you have to litigate and that is more about where there are significant non-financial benefits for taking a certain course of action.
So to give you an example, I have acted for financial advisors who have and are bound by restrictive covenants, and it is very rare for a financial services firm not to take action to enforce its restrictive covenants against financial advisers who are leaving because what they don't want to be seen as in the market is being a soft touch, they want to be seen as somebody who they have these restrictive covenants in place for a reason and they are prepared to stand by them. So they will spend the money on litigation and often when you have something like that or where your reputation is being questioned then that is a situation where actually even if there are no financial benefits you have little choice but to litigate.
Other ways of resolving disputes, I have put on there statutory demand and winding up and obviously word of warning there was a suspension during the COVID period, it has recently been lifted I think on 30 September you can now serve that demand and winding up petition but it is a very very blunt tool. So it is to be used with caution an only for unpaid and undisputed debt. So if it is for unpaid invoice that is not disputed then actually sending a statutory demand or threating to wind up is an effective way of getting paid but for a corporate, it has to be a debt of more than £750 and for an individual it is £5,000 and if they don't respond within 21 days to the statutory demand, that effectively is evidence they can't pay their debt as they fall due so you can then go on to serve them with a winding up petition or a bank entity petition.
Now those steps are not to be taken lightly because the consequences are very serious. So if you are petitioning for winding up the company that petition will get advertised and it will affect the credit rating of the business so that is the reason why the threat is very serious and lots of companies do pay up on the back of that.
So again to give you an example, I think in about February 2020 just before COVID I was acting for a large construction company that was owed a significant amount of money by a UK business owned by, they had a Chinese owner and we wrote to them demanding payment, they refused, we served a statutory demand and again, they didn't respond. We threatened a wind up and what the response that we received at that stage was the owners are based in China, COVID19 is ravaging through everything we can't get to the bank and what we didn't know then was just how serious it was, so we persisted and the debt did get paid so it was very effective and I would probably say we are quite lucky to have got in there but you can see that it can be effective but it must not be disputed. If there is a dispute or there is an inkling of a dispute in relation to a statutory demand, then it is best to not go down there because the Court can penalise you and you could face and injunction to stop you presenting a winding up petition. So it is not to be used lightly.
Obviously, there is also termination if it is a contractual dispute. Have a look at what your contract says about termination. Is there a termination for convenience clause? If there is, make use of it. If there isn't have a think about whether there has been a breach. Does the other side have to remedy the breach? What sort of notice do you have to give in respect of any breach under the contract? If there are provisions in the contract about notice, then do follow them by the book.
One very quick thing that I would like to say in respect of termination is the repudiatory breach. So a breach that goes the heart of the contract sort of a big whammy. It doesn't terminate the contract automatically and I often seen clients who think well you know they did this, it was obviously we couldn't possibly continue, it isn't obvious, it isn't automatic and what it does mean is that you can decide whether to accept the breach and terminate or whether you want to affirm and continue because actually you need to get the job done. So you have to decide to accept the breach and then you have to tell the other side and say follow the notice provisions on that.
So I am going to touch very briefly on privilege because I know that my colleague Jo Rhodes has recently done a talk that covers privilege which is a topic all on its own right so I am not going to talk about it here in any great detail. You will be aware that there is litigation advice privilege and then I am going to concentrate on litigation privilege and what it means in the litigation context. It effectively is confidential communication between a lawyer and a client or between either of them and a third party made for the dominant purpose of litigation that is reasonably contemplated or existing so it is continued. So if you are in pre-action or you think there is a contract that is going a little bit awry it might be, and you are contemplating litigation it might be that litigation privilege applies in that context.
Most communication and exchanges that happen between lawyers in the litigation context are covered. What I would say is just a word of warning if you are around discussing settlement, which is great because you are about to resolve the matter, but equally there is certain case law coming out now that if settlement discussions are discussing commercial aspects of a deal specifically and only rather than the legal aspects then they may be considered to be non-privilege and what we don't want to do is you don't want to waive privilege inadvertently in the settlement discussions and so use labels so if something is privileged, mark it as such. If you are providing advice in respect of a dispute or some litigation in a memo, or in a board meeting minute, again label it as such. Labels aren't definitive but they are helpful. If you can, keep any commercial advice separate to legal so you could provide a memo setting out what type are happening in the dispute mark that as privileged with litigation privilege on top of it, private and confidential and then possibly refer to it which means that any minutes and memos that are disclosable and that refer to that privilege documents the bits that are privileged can be redacted if it goes to Court.
It is extremely easy to muddy the waters if you are working in-house but as I say try as much as possible to think about what is the advice I am giving, who am I giving it to and think about the different hats that you are wearing when you are giving the advice.
My number one top tip probably trumps everything I have said so far is don't write anything down that you wouldn't want to end up in front of a Judge. Not in an email, not in a letter, not in a WhatsApp or a text message, because sometimes, especially when you're in a dispute, people can get very hot headed and type things and send without thinking and it is not pretty when it has to end up in front a Judge so try and communicate that word of caution across your organisation and exercise it yourself.
Without prejudice I am sure you all know what this is, it is effectively another rule that operates to keep material out of the court and effectively it's used so that genuine attempts to settle litigation are prevented from being used in evidence against you as an admission in Court so the aim is very much to encourage genuine attempts to reach resolution. That's why they are used. I often say that court proceedings are like a train, you get on, once you are on there, those deadlines are set by the court, you have some room to manoeuvre, there are some deadlines you can agree with the other side but more or less you are on that train to destination court proceedings. Alongside that we also have without prejudice discussions so we are trying constantly to sort of a two-track approach to try and settle things if we can and what we don't want to do for example if you deny the claim and that is your open position but you know you don't want to incur the costs of court, of lawyers, the time, it is just too much and you think actually do you know what there is a useless amount that I am willing to pay for this to go away without admitting liability so I am going to put this forward and what you don't want the court to do is to have a look at that and then say well you wanted to settle it must be that you are admitting liability and that is why you mark it as without prejudice.
Insofar as without prejudice save as to costs, now that effectively means that you can refer to communication that in relation to settlement but only after liability has been decided and you are talking about costs so for example, if you have made an offer to the other side and they refused it but then went to Court and failed to better the offer that you put forward then you might want to tell the court about that and say well actually we could have resolved this six months ago if only they had accepted my very reasonable offer and so therefore I don't think I should have to pay their costs and they should be penalised for that and the court will take that into account.
So I tend to use without prejudice save as to costs more frequently now because actually if there is a genuine attempt to settle and I want the court to see that we have gone over and beyond to try and negotiate things but the other side is being unreasonable then why not have a chat about it at the stage we are talking about costs. I am not going to talk about it here, it is very technical but there is also something called the part 36 offer that you can make which has certain costs consequences but that forces someone to consider and it can be done at any stage of the litigation including pre-action. As I say, sometimes you will see without prejudice save as to costs used less because parties prefer to use the part 36 rule and putting offers on that basis.
So I think that wraps it up. So if you have any questions, I can see there are some questions.
James: Thank you very much for that Ana, that was fantastic and some really good tips for us all to be thinking about, some good takeaways for everyone, thank you.
Yeah we have had some, we have got a couple of minutes for some questions, we have had some good ones through. So I think if we just kick off with the hopefully the relatively easy one, it's from an individual talking about if you are dealing with a litigant in person and used the incorrect protocol and you have actually advised them of this and then they go ahead and issue the claim anyway, do you think, how do you think the court would deal with that in terms of concern with the claimant's error?
Ana: So that is increasingly more difficult because I think in the last seven to eight years we have seen more litigants in person because court fees are extremely, it is very very expensive and especially to issues where people try and do it themselves. I think there is a court guide for litigants in person that I always used to send to litigants in person and say look here it is this is a litigant in person guide have a read of this, you can't advise them but you can point them in the right direction and I think as long as you have set out in your correspondence and said you know, this isn't the correct protocol and make clear and send them the correct protocol whether by way of link or you can print it out and send it to them, I think that is just advice but one of the things I would, at that stage, be thinking and obviously looking at the merits of your claim is whether you have the option of making an application to strike out because the claim isn't you know, has no prospect of success so that is something to consider is can you strike it out? The courts are sympathetic to a point for litigants in person but they just because you are a litigant in person doesn't mean that you are not obliged to comply with the court rules so you know have a think of what possibly a strike out application might work in the instance.
James: Great, that is really helpful thanks and I think we have got time for just one more quick question I think and that is you mentioned as a potential alternative to litigation having without prejudice correspondence or conversations with the other side, somebody has asked are there any specific formalities that you use when you are having that sort of conversation, you know, do you need to get that confirmed in writing first or anything like that.
Ana: No, labels are helpful but it's, it is really the substance of what is being discussed, if there's a genuine attempt to settle in terms of conversations I would before you start the conversation make it clear that it is on a without prejudice basis. If the person doesn't understand what that means, then just explain to them that it is confidential and you won't be able to refer to it in court later on and that's it you know you just have to make a note that it is a without prejudice conversation and a genuine attempt to settle. If you are having those conversations, even in a commercial more informal context I would encourage you to keep a note of who said what because it might be later down the line that either the other side tries to rely on that conversation or something might happen and you want to have a record of it. Do mark it down but do just make it clear that you are having that conversation on a WP basis.
James: Okay fantastic well I simply, we just run over for a couple of minutes but we will call it a day there, I would like to say thank you to Ana and as I said that the beginning if you do have time just to go through that feedback form which should come up on your screen after we close the webinar, please do and hopefully see you at webinars tomorrow and on Thursday morning. Okay have a great day everyone, thank you.
Ana: Thank you, take care.
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