Litigation can be an effective way of protecting your rights, obtaining compensation, recovering property or money, challenging another person’s conduct or obtaining a court order. It can also be complicated, expensive and uncertain.

Our role is to advise you, investigate the evidence, identify the legal issues, correspond with the other parties, negotiate where appropriate and represent you through the court process where proceedings are necessary.

However, a solicitor cannot manufacture evidence, compel every organisation to cooperate voluntarily or guarantee that the court will give you everything you want. A successful case normally depends upon having sufficient reliable evidence to prove the important facts.

Evidence is central to your case

It is not normally enough for a client simply to tell us what happened. We must consider how each important part of the case can be proved.

Evidence may include:

  • letters, emails, text messages and WhatsApp messages;
  • contracts, agreements and contemporaneous documents;
  • photographs, videos and recordings;
  • bank statements and financial records;
  • medical, employment, care or professional records;
  • official records held by public bodies;
  • records held by companies or other organisations;
  • witness evidence from people who saw, heard or experienced relevant events;
  • expert evidence, where specialist opinion is genuinely necessary;
  • evidence produced by the opposing party through disclosure.

The court may reach a different conclusion from you about what happened. Our task is then not simply to repeat your account, but to identify the evidence capable of supporting it.

You should preserve all potentially relevant material. Please do not delete messages, emails, photographs, documents or electronic material because you believe they are unhelpful. Disclosure obligations can extend to documents which damage your own case as well as documents which support it.

Witnesses and witness statements

Witness evidence can be extremely important.

If another person saw an event, heard a conversation, received relevant communications or has direct knowledge of an important fact, we may need evidence from that person.

We will help identify the issues on which witness evidence is required and can assist in taking and preparing a properly formatted witness statement. A witness statement should contain the witness’s own evidence, normally in their own words, and identify what is within their own knowledge and what comes from another source. 

You will usually need to help us identify potential witnesses. This means telling us:

  • who they are;
  • how they know about the events;
  • what you believe they can prove;
  • how they can be contacted.

We can approach a witness or organisation where appropriate, but we cannot require a voluntary witness to give a favourable statement.

A witness must tell the truth. We cannot tell witnesses what evidence to give or ask them to change truthful evidence because it does not assist the case.

If proceedings have begun, the court can in appropriate circumstances issue a witness summons requiring someone to attend court or produce specified documents. That is a formal court procedure and is not the same as obtaining a cooperative witness statement. 

A witness may also be cross-examined. Their evidence must then be capable of being defended under questioning.

Obtaining information from organisations

We can write to organisations asking for relevant information and documents.

Sometimes an organisation will provide the information voluntarily. Sometimes it will require:

  • your written authority;
  • proof of identity;
  • the consent of another person;
  • a formal subject access request;
  • compliance with its internal procedure;
  • a particular statutory request.

However, an organisation may lawfully refuse to provide information because of confidentiality, data protection, privilege, third-party rights or because you have no present legal entitlement to the material.

Sending a solicitor’s letter does not automatically give us a right to documents which the client could not otherwise obtain.

Where voluntary requests fail, we will consider whether there is a legitimate court procedure available.

Disclosure applications and obtaining documents through the court

There are circumstances in which we can ask the court to require documents to be disclosed.

Before proceedings, CPR 31.16 can permit an application for disclosure against someone likely to be a party to the proposed proceedings. The application must be supported by evidence and the legal requirements must be satisfied. Among other matters, the court must be satisfied that the documents would fall within the relevant disclosure obligation and that early disclosure is desirable to deal fairly with the anticipated proceedings, assist resolution or save costs. 

Once proceedings exist, CPR 31.17 can permit disclosure against a person who is not a party. Again, the test is specific: the documents must be likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary to dispose fairly of the claim or save costs. 

These applications are not automatic.

We need to be able to explain:

  • exactly what documents are being sought;
  • why we believe they exist;
  • who is likely to hold them;
  • why they are relevant;
  • how they affect the issues in the case;
  • why voluntary attempts have failed;
  • why a court order is justified and proportionate.

There will usually be additional legal costs for preparing the application, evidence, court documents and attending any hearing. A court fee may also be payable.

There is also a risk that the court refuses the application or makes a costs order. We will then advise you before incurring the expense.

Court disclosure should not be viewed as a general fishing exercise to see what might turn up.

We cannot guarantee that every piece of information can be obtained

Sometimes potentially useful evidence simply cannot be obtained.

Documents may never have existed. They may have been lawfully destroyed. A witness may have died, disappeared or genuinely forgotten what happened. An organisation may no longer hold records. A court may refuse to order disclosure.

If evidence is unavailable, we will consider whether the case can nevertheless be proved from other material.

We will tell you if an evidential gap materially weakens the case.

We need your assistance

Litigation is a collaborative process between solicitor and client.

We will need you to:

  • give us full and accurate instructions;
  • provide all relevant documents, including documents which may be unhelpful;
  • identify potential witnesses;
  • help obtain contact details for witnesses where possible;
  • respond promptly when we request information;
  • check factual documents and draft witness statements carefully;
  • tell us immediately if anything important changes;
  • comply with court deadlines;
  • preserve relevant documents and electronic information;
  • attend appointments, mediation and hearings where required;
  • keep us informed of any communication directly received from another party.

Please do not assume that we already know something because it seems obvious to you. If a fact matters, tell us and tell us what evidence may exist to prove it.

The other side will have their own version

Most litigation exists because two or more parties disagree.

The defendant may deny your account completely. They may admit some allegations but dispute others. They may produce documents or witnesses which contradict your evidence. They may make allegations against you or bring a counterclaim.

We then have to consider not only:

“What is our client’s case?”

but also:

“What is the strongest case the other side could put forward?”

That is why our advice may sometimes be critical. Identifying weaknesses before the opponent or judge does so is part of properly protecting your position.

A strong case is not the same as a guaranteed case

We can advise you that a claim has good prospects, but we cannot guarantee success.

Witnesses may perform differently under cross-examination from how they appeared when giving a statement. Documents may emerge later. An expert may express an unexpected opinion. The judge may prefer another witness’s account or interpret the law differently.

Litigation always contains an element of litigation risk.

Our assessment of prospects may then change as new evidence becomes available.

The court may not give you everything you want

A client may understandably enter litigation wanting:

  • an apology;
  • an admission;
  • compensation;
  • punishment of another person;
  • disclosure of particular documents;
  • restoration of property;
  • an injunction;
  • a declaration;
  • vindication.

The court can only make orders which it has legal power to make and which are justified by the evidence and applicable law.

Sometimes a client succeeds on the principal issue but receives less money than expected. Sometimes the court gives one remedy but refuses another.

We will distinguish between what you understandably want and what a court can realistically order.

Before court proceedings

Starting proceedings is usually not the first step.

Where a relevant Pre-Action Protocol applies, it should normally be followed. Otherwise the general Practice Direction on Pre-Action Conduct requires parties to exchange sufficient information to understand each other’s position, consider settlement, exchange key documents and consider ADR. Litigation is intended to be a last resort. 

The pre-action stage may then include:

  • investigating your case;
  • obtaining documents;
  • identifying witnesses;
  • obtaining preliminary witness evidence;
  • considering limitation;
  • writing a formal Letter of Claim;
  • receiving and analysing the response;
  • requesting relevant documents;
  • responding to allegations;
  • considering settlement;
  • considering mediation;
  • assessing whether proceedings remain proportionate.

This stage can take time, but proper preparation often prevents much greater expense later.

Starting court proceedings

If the case cannot be resolved, we may advise issuing proceedings.

This can involve:

  • preparing the Claim Form;
  • drafting Particulars of Claim;
  • calculating the remedy or damages claimed;
  • paying the court issue fee;
  • serving proceedings;
  • reviewing the Defence;
  • dealing with any Counterclaim;
  • preparing further statements of case where necessary.

Once proceedings are issued, the court increasingly controls the timetable.

Deadlines can become strict.

Case management

The court will usually decide how the case should progress.

Depending upon the type and value of the case, directions may deal with:

  • disclosure;
  • witness statements;
  • expert evidence;
  • schedules of loss;
  • requests for further information;
  • mediation or ADR;
  • preparation of hearing bundles;
  • skeleton arguments;
  • trial preparation;
  • the trial itself.

Failure to comply with a court order can have serious consequences, including costs sanctions and, in serious cases, evidence being excluded or claims or defences being struck out.

Disclosure during proceedings

Disclosure is an important part of litigation.

It does not simply mean providing the documents which help your case.

Depending upon the applicable disclosure regime and court order, you may have to disclose relevant documents which:

  • support your case;
  • support the opponent’s case;
  • undermine your case;
  • undermine the opponent’s case.

You must then be completely open with us about documents in your possession or control.

A difficult document is usually much easier for us to manage if we know about it early.

Expert evidence

Some disputes require specialist evidence, for example concerning:

  • medical conditions;
  • property valuation;
  • accountancy;
  • surveying;
  • professional standards;
  • engineering;
  • handwriting;
  • capacity;
  • other technical matters.

Expert evidence cannot simply be used because a party wants another person to support their case. The CPR restricts expert evidence to that reasonably required, and court permission is generally necessary before expert evidence can be relied upon in proceedings. An expert’s overriding duty is to the court, not to the client paying the expert. 

An expert may then reach a conclusion which does not support your case.

Settlement and mediation

Settlement should be considered throughout litigation.

Considering settlement does not mean that your case is weak.

A settlement may:

  • remove litigation risk;
  • control legal costs;
  • produce an earlier result;
  • provide certainty;
  • allow solutions the court might not order;
  • avoid the stress of trial.

The Civil Procedure Rules expect parties to consider ADR, and unreasonable failure to engage with ADR can affect costs. 

We will advise you about offers, but the ultimate decision whether to accept or reject a settlement is yours.

Legal costs and billing

Litigation requires ongoing professional work.

It commonly involves reviewing documents, telephone calls, emails, correspondence with opponents, obtaining evidence, preparing witness statements, researching law, preparing applications, considering disclosure, advising upon strategy, negotiations and preparing for hearings.

We will then bill as the matter progresses in accordance with our retainer and agreed charging arrangements.

You should not assume that payment will only be required when the case finishes.

Invoices are expected to be paid when due.

Litigation may continue for months or, in some cases, considerably longer. It is then important that legal fees are kept up to date throughout the case.

Where substantial additional work is required — for example an application for disclosure, injunction proceedings, extensive witness evidence, expert evidence or a hearing — we may discuss the likely additional costs with you before that work is undertaken.

If invoices remain unpaid, we may be unable to continue undertaking further work and, where proceedings are already underway, may need to take appropriate formal steps concerning our continued representation, subject to our professional and court obligations.

Paying our costs is different from recovering costs from the opponent

Even if you win, you should not assume that the opposing party will reimburse every pound you have paid us.

The amount recoverable depends upon matters including:

  • the court track and applicable costs regime;
  • the orders made by the court;
  • proportionality;
  • the issues on which each party succeeded;
  • conduct;
  • settlement offers;
  • the reasonableness of the work undertaken.

Under CPR 44.2, the general rule where the court makes a costs order is that the unsuccessful party pays the successful party’s costs, but the court has a broad discretion and can make a different order. 

There can then be a difference between:

our charges to you

and

the amount you may ultimately recover from another party.

There is also a risk of paying the opponent’s costs

Depending upon the type of case and costs regime, losing litigation can result in an obligation to contribute towards or pay the opponent’s legal costs.

Applications made during proceedings can also produce separate costs orders.

For example, if we make an unsuccessful disclosure application, the other party may seek its costs of responding to it.

We will then consider whether proposed procedural steps are proportionate before recommending them.

Litigation decisions must be proportionate

Not every point should be fought simply because it can be fought.

A £5,000 dispute cannot ordinarily justify £30,000 of procedural warfare.

Sometimes obtaining a particular document may cost more than the evidential value of that document justifies.

Part of our role is then to advise not merely whether something can be done, but whether doing it is sensible and proportionate.

Litigation changes as evidence develops

Our initial advice is based upon the evidence available at that time.

A case may become stronger because:

  • a useful witness is found;
  • important records are disclosed;
  • the opponent makes an admission;
  • expert evidence supports the claim.

It may become weaker because:

  • documents contradict the client’s recollection;
  • a witness refuses to cooperate;
  • evidence cannot be obtained;
  • an expert disagrees;
  • limitation or legal issues arise;
  • the opponent produces stronger evidence than expected.

We will review our advice as the evidence develops.

What we cannot promise

We cannot promise:

  • that every witness will cooperate;
  • that every organisation will release information;
  • that a court will order disclosure;
  • that an expert will support your case;
  • that the opponent will settle;
  • that proceedings will finish quickly;
  • that every legal cost will be recovered;
  • that the opponent will comply voluntarily with a judgment;
  • that you will receive every remedy you seek;
  • that the judge will accept your version of events;
  • that litigation will produce the result you personally regard as fair.

What we can promise is to investigate the case properly, advise you about the evidence and law, explain the risks, pursue appropriate steps on your behalf and keep the strategy under review as the case develops.

Client expectations

For us to represent you effectively, we expect you to:

  • be truthful and complete in your instructions;
  • provide documents promptly;
  • identify witnesses who may assist;
  • help us locate witnesses where possible;
  • tell us about evidence which may damage the case;
  • respond to requests and deadlines promptly;
  • follow advice concerning preservation of evidence;
  • avoid contacting witnesses in a manner which might be criticised as pressure or interference;
  • avoid publishing material about the litigation on social media without first discussing it with us;
  • tell us immediately about direct contact from the opponent;
  • attend hearings and appointments when required;
  • keep your account with the firm up to date.

The overall approach

Our aim is not simply to “fight” a case.

Our approach to litigation is to:

  • identify the legal case
  • identify what must be proved 
  • identify the evidence 
  • fill evidential gaps where reasonably possible 
  • test the opponent’s position 
  • assess risk 
  • pursue settlement where appropriate 
  • litigate where necessary

The strongest litigation is usually built on evidence rather than assertion.

Sometimes our advice will then be that more evidence is needed before a claim should proceed. Sometimes we may advise against a particular allegation or application because the evidence is insufficient or the cost is disproportionate. That is part of protecting you from unnecessary cost and risk, not a reluctance to pursue your case.