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Tactics and strategy are often as important in a dispute as the law and evidence.

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Tactical considerations can be equally important, if not more important than the law in dispute resolution. This is especially true as most cases do not reach trial and there is rarely an outright “winner”. Strategy in litigation is a vital tool in achieving the best available outcome.

 Our litigation lawyers have the experience and nous to guide you to the right strategy – read below and get in touch to discuss how we can help. 

Key strategic and tactical considerations

  • Find the pressure point – What is the opponents weakness, their perceived attitude to risk, resources? There may be other considerations such as the potential of an ongoing relationship.
  • Strategic timing – in almost every case, as in life, timing is everything. There are generally 1 or 2 strategic times and opportunities in every case to maximise the chances of getting the best result while you have the advantage.
  • Upping the ante or seizing the initiative – this is not recommended in every case and is a high risk strategy. If you are a defendant and possibly have grounds to counterclaim or bring in other parties this can hugely alter the dynamics of the dispute.
  • Look for technicalities – in many cases there is a technical legal point which can be argued. Your opponent, for example, may believe that he, she or it has a watertight breach of contract claim. Taking a technical point can create significant doubt where little existed previously and help with settlement.
  • Think settlement not trial – whilst the worst case scenario of going all the way to trial must always be factored into planning, your strategy should generally be based on settling as early as possible and not going to a trial. A strategy of attrition rarely makes commercial sense.
  • Costs and 3rd party litigation funding – if a case proceeds anywhere near trial, legal costs are often a huge factor in making settlement more difficult. Positions become entrenched. Always think about costs from the outset. Litigation funding has advantages and disadvantages and may only be available for higher value claims, but where appropriate, it should be considered.
  • Know your opponent – psychology is very important but so is factual information. Don’t assume your opponent has the funds to meet any settlement, judgment or costs order. Consider this right from the outset and on an ongoing basis.
  • High risk early court applications – sometimes it is worth considering a strategic application such as for summary judgment, to strike out a defence or claim or an injunction application. All of these are costly and high risk, but if they work, they may result in a decisive blow to the opponent and end to the dispute.

 For strategic or tactical advice or where you need a litigation solicitor generally, get in touch with us. 

Striking out a claim or defence

The court has the case management power of strike out under CPR 3.4 and may also strike out under its inherent jurisdiction. An application to strike out under CPR 3.4 or under the court’s inherent jurisdiction is a powerful tool to head off litigation and save costs, but litigators should be cautious about strike out. The courts use the power to strike out sparingly.

Offers to settle in litigation

Offers to settle are a very important part of litigation tactics. Obviously, the primary reason for making an offer is to settle, although in some cases, an offer can be an opening gambit, not expecting it to be accepted but opening a door to negotiate further.

Making an outlandish offer to settle is not usually advisable once a case proceeds down the court process route. In that situation, a carefully judged, sensible and realistic offer is advisable. This is because one of the main advantages of strategic settlement offers is to put pressure on the opponent on costs and to hedge your position on costs if the offer is refused.

Costs are technically in the discretion of the Court, so where a tactical offer has been made by either party which is refused by the other party and the case goes on to trial and the refusing party achieves a less favourable outcome, the court may well penalise him or her on costs.

What is “without prejudice save as to costs”?

Offers to settle a case are generally put forward on a ‘without prejudice save as to costs’ basis meaning they are entirely confidential save that the party making the offer reserves the right to notify the Judge of the offer when the issue of costs arises after judgment. This can be very important.

Formalities of an offer to settle

Part 36 of the Civil Procedure Rules – where an offer to settle a claim is made, it is important to ensure the offer complies with the rules. You can either read up on this online or we would be happy to advise.

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