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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
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.