Additional terms of business



Relating to Litigation Matters

INTRODUCTION

Our professional rules impose various obligations upon us when you are involved in a matter involving a dispute. These obligations together with other terms of business relating to litigation matters are set out below.

1. COSTS RISK AND COURT ORDERS FOR COSTS

We shall discuss with you at the outset if the potential outcomes of legal proceedings will justify you incurring the expense or risk involved including, if relevant, the risk of you having to pay your opponent's costs.

If legal proceedings are taken or defended on your behalf, the court will make an order as to who should pay the costs of the various stages of the court action. Costs orders of this kind are often made as the case progresses. Generally speaking, costs "follow the event". That means that the successful party at a particular stage of the proceedings is entitled to recover a contribution to his costs from the unsuccessful party. However, that contribution rarely covers all the costs and disbursements that the successful party has incurred.

In most cases, the Civil Procedure Rules require that where any interim application is made during the course of proceedings, then the question of who should bear the costs of that interim application and in what amount will be dealt with there and then.

If you are successful in any stage of litigation and are awarded a costs order in your favour, the unsuccessful party may not be willing or capable of paying the sum it has been ordered to pay to you. However, you remain responsible for our fees and disbursements incurred upon your behalf. If your opponent is publicly funded, it is highly unlikely that you will recover any of your legal costs even if you are successful.

Should you be unsuccessful in relation to any stage of the litigation, it is likely that you will have to pay your opponent's costs as well as your own. Those costs are ordinarily payable within 14 days following the date on which the (adverse) court order is made.

2. STATEMENTS OF TRUTH

The Civil Procedure Rules require that many court documents must be verified by a signed "Statement of Truth". This requirement applies not only to witness statements but also to claim forms, statements of case and lists of documents.

The rules require that the document should be verified by a person who knows sufficient about the circumstances giving rise to the proceedings to be able to verify that the contents of the documents are true. Obviously, witness statements will be signed by the witness giving the statement; for other documents, however, it is this firm's policy that the statements of truth contained in such documents should usually be signed by the party to the proceedings for whom we act. That party will be in the best position to be able to confirm that the contents of the document are true.

If the party is a registered company or corporation then verification must be by a Director, Treasurer, Secretary, Chief Executive, Manager or other officer holding a senior position.

3. CASE MANAGEMENT

The pace at which a case proceeds is actively controlled by the Court pursuant to its case management powers. The Court will take steps to ensure that every claim proceeds in an expeditious and economical way and strict sanctions may well be applied to parties who fail to comply with time limits set by the Court. It is therefore essential that we ensure at the outset that all relevant personnel likely to be involved and/or needed to progress the case are identified at an early stage and those individuals are prepared and willing to respond, swiftly, to our requests for information and documents to move the matter forward.

4. DISCLOSURE OF DOCUMENTS

You have a continuing obligation to preserve any and all documents which may need to be produced to the Court in the course of any litigation. You should be careful, therefore, not to destroy any documentation which you believe may be relevant. The definition of document for this purpose extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. Documents that are stored on servers and back-up systems and electronic documents that have been "deleted" are also covered.

If the claim reaches the stage where documents need to be disclosed between the parties, it will be necessary for you to carry out a search for certain types of documents and for you/a member of your company (where applicable) to sign a "Disclosure Statement" confirming:

1. the extent of the search that has been made to locate documents; and

2. that the named individual understands the duty to disclose documents and to the best of his/her knowledge believes that duty has been carried out. In addition, that individual will also need to explain why he/she is considered the appropriate person to make that statement.

Should proceedings reach that stage, we will obviously advise you as to your disclosure obligations in more detail but, broadly, the standard disclosure obligations mean that the following documents must be disclosed:-

those upon which you wish to rely;
those which adversely affect your case;
those which adversely affect another party's case;
those supporting another party's case;
those required to be disclosed by any relevant practice directions.
Given the Court's case management powers and the restrictive timescales that are likely to be imposed, then the search for documents in the above categories should be commenced as soon as possible.

5. FUNDING ARRANGEMENTS

There are various options which we shall discuss with you that may help to reduce your potential exposure to legal costs. These include obtaining insurance or entering into either a conditional or contingency fee arrangement. We shall discuss these possible options with you before the commencement of any legal proceedings.

In certain cases, it is possible that your own costs may be covered by an insurance policy or may be payable by, for example, your employer or trade union. Please inform us if you think you are eligible for such assistance.
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