Red Herrings in Litigation

During the course of litigation, there are key points at which it is to be expected that further information/documents will emerge as follows:
  • At close of pleadings - when both sides have set out their cases with legal particulars
  • After Disclosure of Documents - when each side provides the other with copies of its documents
  • After exchange of witness statements - when the other side's detailed witness evidence is known
and generally a further written Opinion will be needed at each of the above stages. 

It is also possible that some new information may come to light at other times, or some question or "angle" might occur to you at other times. A barrister who is experienced in a particular area of law will know from experience which "leads" are worth spending time and money on and which are likely to lead nowhere particularly significant, but ultimately it is the client's choice whether to pay further fees for the barrister to look in detail at, and advise on, any particular new point.  

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 giving a quote for providing 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, though if the client were to do this frequently then it would greatly increase costs and it is unlikely that all those increased costs could be recovered from the other side even if the court/tribunal is one which normally awards the winner their costs.  

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 on it.

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 generally a party's motives for deciding to start a case will be much less of a consideration for the judge that most clients expect. 

The other party has a weak case - can an application be made to the court/tribunal to point his out? 

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 not enough in a summary judgment application to show merely that they are unlikely to win at trial). It will normally be quite difficult to prove that the other side could not win at trial and if you make an application for summary judgment and fail you would normally have to pay the costs of the failed summary judgment application even if you subsequently go on to win at the eventual trial.

Using pre-action negotiations between parties as evidence

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 (note: the table is just a summary to give the general idea) 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 except as to costs" 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 make the best of the situation. 

If there has been pre-action correspondence between parties which it is desired to use at trial (or after trial for 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 was not "without prejudice" (in the lawyer's sense) 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).

What the other party has done in the past with other people 

The law is not the same as morality and not everything about your opponent's behaviour will be legally relevant. It is easy to over-estimate the importance of information about what your opponent has done, or is alleged to have done, on other occasions with other people. For example if you have bought a car from a dealer which keeps breaking down, the fact that you have found out that someone else bought a different car from the same dealer, and that car also had problems, is not, without more, likely to be of any assistance in your case. The court/tribunal hearing your case will want evidence about what was wrong with your car (if that is disputed) and about the terms of the contract of sale which you entered into.

There are a few situations, however, where what your opponent has done, on other occasions, with other people, might be sufficiently probative to be useful to your case. For example if your opponent is a business which claims that something it did in it dealings with you (which is relevant to the outcome of your case) was not deliberate and the timing was pure co-incidence, and if it can be proved that such “co-incidences” happened in a number of previous similar instances with other people dealing with your opponent, that undermines your opponent’s argument that it was pure co-incidence.

Take another example. There may be a dispute about whether the representative of a business you are in dispute with gave you a certain warning about something important (if the company should have warned you and you have suffered loss because they did not). You may have a clear recollection that the company did not inform you. The representative of the company will probably not have a very clear memory if the representative has dealt with hundreds of other customers since, and the company may have no actual evidence that its representative, on that specific occasion, did give you the warning. The company may claim, however, that it has a strict procedure and all company representatives are required to, and do, give the warning before the customer buys the product. If the company is relying on the fact, or alleged fact, that it has a strict procedure to try to prove that on this occasion (as on all other occasions) its representative would have given the warning, then proof that on other occasions, with other people, this representative, did not in fact give the relevant warning, undermines your opponent’s argument that it does have a procedure which is strictly followed.

So these are two examples, where what has happened to other people who dealt with your opponent on other occasions, might be useful. However usually what happened to other people on other occasions turns out to not be sufficiently relevant to be useful, or may raise more questions than it answers, and, in most court/tribunal cases, the evidence presented to the judge consists only of much more direct evidence about the specific matters in dispute – i.e. the evidence of people directly involved and contemporaneous documents directly about the particular situation in dispute.

Some people think that if they can prove that their opponent lied in the past about some matter, not related to the case, that will show that they are a liar who should never be believed. However in the absence of a written admission by your opponent that they have lied (which would be unusual) or a criminal conviction for an offence involving dishonesty (e.g. fraud) proving that they have lied on a previous occasion involves showing what they said on a previous occasion, showing that it is untrue, and showing that they must have known that it was untrue. Proving that would generally require witnesses, and the other side might allege that those witnesses have themselves, in the past, told lies and might want to use further witnesses to prove this. To prevent the court/tribunal process becoming too long and raising too many side issues, the courts/tribunals generally will not allow evidence that your opponent has lied on a previous occasion unless the lie has some connection with the case and/or the witnesses to the lie are already witnesses in the case for other reasons.

Procedural speculation

The law is designed to provide a remedy where a party has suffered a legal wrong and the procedural rules are designed to be fair to both parties, allowing both parties to have their case considered in a orderly way. The rules provide for various eventualities to prevent a party evading the system. For example if a party does not file a Defence document by the required time the other party can enter or apply for judgment in default. To a certain extent a barrister's Opinion may deal with future courses of action depending on how the other side acts in future but there is a limit to how much conditional detail it is helpful or possible to provide. It is understandable that because of the risk involved in all litigation a client will ideally want the equivalent of a detailed flowchart detailing all possible future events and actions which will be taken in response to each but the difficulty with that is twofold. Firstly it would take much time and be expensive to provide. Secondly it would probably be of little practical assistance because each detailed scenario would be essentially speculative. It is true that giving examples of what can be done in in response to particular detailed scenarios might give some general reassurance but it is unlikely that the examples will precisely match what actually happens - usually things are more complex or nuanced - so the detail would not actually help in any practical way to inform the present decisions the client has to make.     


This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

This page was lasted updated in October 2019. Disclaimer