Red Herrings in Litigation

The law is not the same as morality and not everything about your opponent's behaviour will be legally relevant. Of course when seeking advice from a barrister you will want to tell them about anything which might be relevant so that they can advise you, normally in a written Opinion. 

The result on the initial Opinion may be litigation. During the course of litigation it is common for a barrister's Opinion to be sought on one or two further occasions are more information becomes available, particularly immediately after the Disclosure of Documents stage (when all the documentary evidence which either side will be relying on should be available) and after the Exchange of Witness Statements stage.

The process of litigation takes many months and during that time, partly due to the worry inevitably caused by litigation, it not uncommonly happens that new concerns occur to clients. This can happen in all cases but it happens particularly where a client has instructed a barrister directly (rather than through a solicitor) because the client is then more exposed to the detailed procedural steps.

Instructing a barrister directly normally saves a lot of money (as compared to instructing both a solicitor and a barrister) but this saving would be lost if the client were to ask the barrister for an Opinion not just at two or three strategic points during the litigation but much more frequently. Of course if a client wishes to pay for a barrister to look into and consider a new point, that is the client's choice, but there are certain types of queries which are very common and which, 90% of the time, turn out to be expensive red herrings and a barrister may, before agreeing to provide an Opinion on the matter raised, mention to a client that in their experience the matter raised is the kind of matter which, when looked into, rarely turns out to be a significant matter which could help the case. Of course occasionally what initially appears to be likely to be a red herring turns out to be an important and significant matter, and the only way to be sure is to pay the barrister for an Opinion, and ultimately it is the clients choice whether to pay for an Opinion on the matter.

Some of the more frequently raised "red herrings" are outlined below but it should be emphasised that every case is different, sometimes what might seem initially to be a red herring is, on the contrary, something significant, and the only way to be sure that something significant is not missed is to pay for an Opinion.

The other party's motives in pursuing the case

Generally the court/tribunal is only concerned with who is legally right on the facts of the case. Some people are quick to go to law when a dispute arises. Other people are more inclined to put things down to experience and not bother to make a legal claim. But generally speaking why someone has chosen to invoke their right to have a dispute determined by an impartial judge is not the judge's concern: the judge will decide the case on its merits. As with all general statements, there are exceptions. If someone is seeking an injunction, that is a discretionary remedy and the court might choose to award monetary compensation instead if the party had demanded money before starting the case thus indicating that that was really all the were concerned with. But ordinarily a party's motives for deciding to start a case are not relevant. 

The other party has a weak case 

If the other party is intent on pursuing a weak case there is generally not much that can be done about it except continuing up to the trial in the normal way. In extreme cases it may be possible to make an application for summary judgment - i.e. asking the court to declare you the winner without there having to be a trial - but the court will only give summary judgment if it can be shown that the other side could not possibly win at trial. It is quite difficult to prove that and if you make an application for summary judgment and fail you would normally have to pay the costs of the summary judgment application even if you subsequently win at trial.

Using pre-action negotiations between parties

You cannot normally use what was said in unsuccessful settlement negotiations to support your case at trial because such negotiations will normally be "without prejudice". The table here gives more information but the heading on a letter (without prejudice, without prejudice except as to costs, etc.) is not always determinative and even a letter not headed as such might still be regarded as "without prejudice" simply because it is an attempt at settlement. If there has been correspondence between solicitors then the solicitors will normally be careful how letters are headed (and they may, for example, sometimes send two letters together, one headed "without prejudice" and the other not) but even between solicitors sometimes the status of communications is unclear and if solicitors are not used on both sides there is the added complication that sometimes people who are not lawyers use "without prejudice" to mean something different from how that phrase is used by lawyers and, if that is apparent from the context, then the letter may not be treated as "without prejudice" in the lawyer's sense. A further complicating factor is that there is a legal distinction between attempts to settle a legal dispute and attempts to find practical solutions to practical problems occurring between parties but in practice there is often overlap. An offer to not play loud music after 10.00 pm could be an attempt to settle a legal dispute if there is some prospect of the nuisance claim or it could simply be a neighbourly proposal to deal with a practical concern without any legal dispute being in contemplation. Sometimes a neighbour who has planning permission for a development who has a neighbour who might try to stop their plans (e.g. by relying on a restrictive covenant) will discuss with the neighbour the possibility of a joint venture or some other business arrangement. Depending on the circumstances that may be an attempt to settle a contemplated legal dispute or it may simply be an attempt to stop any dispute arising. 

If there has been pre-action correspondence between parties which it is desired to use at trial (rather than just for post-trial arguments about who should pay costs) the correspondence would need to be carefully analysed to see whether it could be argued that any item of correspondence could be argued not to be "without prejudice" and then there would normally need to be an application at some point for the court to determine whether it can be used or not. The cost of doing this work is rarely worthwhile (though there are exceptions).


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This page was lasted updated in November 2017. Disclaimer