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The Risks of Litigation
It is often the case that a client will want to know their prospects of success before deciding whether to pursue or defend a claim via litigation. However, it is never possible to accurately determine prospects of success in a dispute, as a solicitor’s advice can only ever be subjective – otherwise there would be no dispute. If the parties, each with their own subjective view, cannot reconcile their differences, then the matter is put before a Court or Tribunal to provide an objective perspective. Even so, the matters to be tried will be decided by judges, themselves with their own subjective opinion.
Therefore, a large and integral part of the work that a solicitor does is to assess the risks associated with advancing a legal argument. Their role is, initially, to take instructions from a client, consider the evidence (both available and required), determine the legal arguments and the risks associated with those arguments (based upon the evidence), and to advise the client of the risks. It is for the client to then decide whether to take the risk associated with proceeding with any particular course of action. If they wish to proceed, their arguments would need to be presented appropriately to the other party, and how the matter then proceeds would depend upon the other party’s response, which would itself affect the risk.
It is sometimes possible to determine prospects of success at the outset. For example, where a landlord has not complied with the requirements necessary for him or her to be able to serve a Section 21 Notice for possession, we would be able to advise the landlord that they would be unable to seek possession under Section 21, and would then advise on the alternative options. On the other hand, we would be able to advise a tenant of their rights in the circumstances, and what steps they could take to protect their position.
However, such clear cut scenarios are relatively rare, and usually there are arguments that can be advanced on either side. For example, in Service Charge disputes, a contentious point is often whether a charge is reasonable and whether the lessee is liable to pay the charge. Reasonableness is, of course, essentially subjective, but if facts similar to that in dispute have previously been determined by the Court or Tribunal, those previous findings would be used as a precedent upon which the Court or Tribunal would base their decision. It is also for this reason that the First-Tier Tribunal (Property Chamber) can be the appropriate forum for determining such specialist issues, given the Tribunal’s specialist experience.
Therefore, the first step in taking a matter forward is usually to take instructions and provide limited advice on the options available along with the likely risks, in order that the client can decide whether, and so how, they wish to proceed. As they are already aware of the minutia of the facts of their matter, at the outset they are often best placed to determine whether the facts support the relevant legal argument, and hence what the risk is. However, it is generally not possible to determine prospects of success without evaluating the arguments on both sides, for which it is necessary to put a client’s arguments to the other party and assess the other party’s response. It should also be said that prospects become clearer over the course of litigation as the matter progresses and the arguments narrow, and the associated risks must be continually assessed.
Therefore, if you are considering taking legal action you should ensure that you have as much evidence available to you as possible at the outset, and that you provide your advisor with a full and frank account of the facts. A solicitor can only argue a case based upon the facts, and if those are subsequently found to be incorrect such that the legal arguments no longer have foundation, it could well become in a client’s best interests to withdraw their action, and they could then run the risk of being unable to recover their own costs, as well as becoming liable for their opponent’s.
The risks of litigation are high, and should not be undertaken lightly. You should prepare well, and consider your options carefully. It is essential that you obtain qualified legal advice at an early stage.
Rachel qualified as a solicitor in 2012 and prior to joining Bishop & Sewell, was a trainee solicitor with Fisher Meredith in 2010 where she later joined their Dispute Resolution department in March 2011.
Rachel specialises in complex litigation, dealing with a wide range of disputes, mainly relating to Land and Estates. She also acts in claims against public authorities for breaches of duty, which can proceed by way of Judicial Review. In addition, Rachel acts in respect of the developing area of civil legal remedies connected to online abuse and trolling. The background to Rachel’s cases often involve sensitive and emotionally challenging subjects, and can encompass elements of capacity, discrimination, Data Protection and privacy.
Rachel has a previous background in environmental justice, and has an LLM in Environmental Law.