Never ignore the litigation risk – Part 1 

by Shoosmiths LLP

Published: January, 2022

The unquantifiable part of subjecting a dispute to the arbitration of a court is the litigation risk. We explore what those risks are and why it is essential that they should never be ignored.


The cornerstones of any case should be clear, solid and documented evidence, a series of strong witnesses and in the ideal world and a juicy piece of case law (precedent) that ties it all together and gives the judge/panel a map to direct them to their decision. The icing on the cake of course is an advocate who can explain concisely how the evidence points the judge down the correct road on that judicial map! However, if it is as easy as that, why would you ever lose a case?


Out of the thousands of claims issued every year, only around 5% of those cases will ever be determined at a trial. Logically, in the majority of the cases that proceed to trial both sides must think that they have a decent chance of success. It must therefore follow that the prospects of success for either side are actually more finely balanced than anyone appreciates and in such circumstances the jeopardy of litigation risk bears its teeth.


Litigation risk typically arises in three different ways: the unpredictability of human behaviour, the production of new and unexpected evidence and the interpretation of evidence by the tribunal itself. We will explore the first two of these areas now and will deal with evidence interpretation within the second part of this article.


The Human Factor

The assessment of ‘facts’ requires an element of subjectivity and therein lies our first problem; decisions are reached by humans who have their own mind and are unpredictable. There can be any number of things that sway a judge/panel into their decision. Does that additional comma in the contract clause really change the whole meaning? Was the ‘smoking gun’ email that you have banked the house on really that important? Is the witness (or the panel) just having a bad day?


If one of the cornerstones of a case is the need for strong witnesses, what happens if one of them doesn’t perform, doesn’t turn up or worst of all, changes their evidence when on the witness stand? The human factor again comes into play and the stack of cards comes crashing down.


Think too of the impact on your case if the judge/panel doesn’t warm to your crucial witness and decides that on the key piece of evidence they ‘prefer’ the version that has been given by the witness for the other sides.


In UK law, solicitors and advocates cannot coach a witness and certainly cannot tell them how to answer a question. Preparation can help however to remove some of the other likely causes of poor performance. The first step should be to listen to the Shoosmiths guide to being a witness at a virtual tribunal hearing and also consider the following points:


  • Witnesses should attend an unconnected hearing so that they are familiar with what happens in the tribunal. In these times with many cases being heard online, witnesses can observe other hearings without even leaving their desk.
  • In England and Wales (not Scotland) witnesses are entitled to attend the hearing before giving their evidence. Witnesses should be encouraged to watch the proceedings and the cross examination of the other witnesses. This will give them an idea of the types of questions that might be asked of them and will also give them a good introduction to the room, the atmosphere of the hearing and the need to speak clearly and slowly.
  • All witnesses should have access to a copy of the whole evidence bundle and make sure that they know their way around it. Ideally, they will have read the full bundle but they should at least be very familiar with any documents that are referred to within their witness statement.

New evidence

It is not uncommon, even in cases which have been running for years, for new evidence to be produced at the final hearing, often with devastating consequences. While the tribunal process in England and Wales (not always in Scotland) requires both sides to disclose all relevant documents months ahead of the hearing, it is still possible for a question under cross examination to elicit the response “I think I said that in my email”. Cue a short adjournment while the witness is dispatched to search their emails (again) to find the relevant message. Not only does the late discovery undermine the factual position of your case, the integrity of your witness is suddenly also in doubt. A witness will often have little idea of the significance of the latest discovery and will not be able to discuss the document with their legal team as they would still be giving evidence and under ‘oath’. The cross examination that immediately follows the late disclosure could be very damaging and may rattle the witness to such an extent that their entire testimony is subject to additional scrutiny and, in the worst case, deemed unreliable.


It is imperative that witnesses are made aware of the importance of checking all of the emails and documents that are in their possession so that these issues do not arise. Handwritten notes are a common problem – if the witness is known to be a compulsive note taker but no manuscript notes have been produced in the disclosure process, questions have to be asked as to their whereabouts. Contemporaneous notes can be some of the most reliable evidence and in a case which rests heavily on witness testimony might make all the difference.


Interpretation of the evidence by the Tribunal

The interpretation of evidence will be covered in more detail in part 2 of this article and will include a recent example of how two separate tribunals considered the same policy. Pitcher v. University of Oxford and University of Oxford v. Ewart were cases in which the tribunals were required to determine the objective justification of a compulsory retirement age as operated by the University of Oxford. Both tribunals applied the correct tests and the facts and arrived at different decisions – both decisions were subsequently upheld by the Employment Appeal Tribunal.



Practical tips (part 1)

  1. As soon as it becomes obvious that there is a dispute, take steps to preserve all relevant documents, notes, emails and other electronic messages (WhatsApp etc) and keep a central store of the same. Where possible, utilise the assistance of your IT Team to complete appropriate searches of IT systems.
  2. At the earliest stages of the litigation, identify any potential witnesses and secure any additional documents, notes, emails and electronic messages that they may hold.
  3. Ahead of the disclosure process, double check with all witnesses that they have supplied copies of all documents that might be relevant to the proceedings.
  4. Ask witnesses to review the disclosure provided by the other side and consider whether they have any documents that were previously not considered to be relevant and supply copies of the same.
  5. Where possible, witnesses should try and attend an unconnected hearing.
  6. In England and Wales, witnesses should make time to watch the proceedings ahead of their own time to give evidence in order to get a better ‘feel’ of the proceedings.
  7. Provide a copy of the bundle to witnesses and encourage them to be familiar with the content well in advance of the hearing.

 



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