Litigation and Arbitration Series

Fourth Article – Experts – Triumph or Disaster ?

Experts: Get the best expert you can. He ( or she obviously ) must be highly expert in relation to the issues upon which he has been asked to give an opinion. He must fully and properly understand the role of an independent expert, study the rules about giving expert evidence and be both willing and able to comply with them.

Then it is necessary to consider whether the expert has experience of giving evidence in court or if not whether he looks likely to be somebody who will be able to deal with the court hearing process. Check also to make sure that he has no blemishes discoverable by an internet search or at least no blemishes sufficient to give him too uncomfortable a time in cross-examination.

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Third Article – Witness Statements

It is now the norm for parties in litigation or arbitration to produce written witness statements which they disclose in advance of the hearing. Those witness statements normally stand as evidence-in-chief at the hearing.

Looking at CPR 32 and the Practice Direction is a useful reminder. [Read more…]

Second Article – Statements of Case and other pleadings.

In this, the second of my series of ten, I consider Statements of Case and other pleadings. At first sight, this is a dry subject. That seems to me to do the subject an injustice but also to understate its importance.

I distinguish between Statements of Case and pleadings on the one hand from briefs, written submissions, skeleton arguments etc, on the other. There is a sound intellectual basis for that distinction, reflecting their nature and the stage of the proceedings at which they come. However, in reality all of them are pieces of written advocacy designed to help the party achieve the result that it wants.

Getting Statements of Case and pleadings right is critical.

It seems to me that three questions to ask before preparing a Statement of Case arise about any given document:

What are the rules?
What is its purpose ?
What devices can be used to make it as effective as possible?

Rules

[Read more…]

First Article – The Start of a Dispute – Strategies and Lines to Take

In this article, which is the first of a series of ten, I shall be looking at the start of a dispute and considering strategies and lines to take.

The first thing to say about strategy is that it is a good idea to have one. That inevitably involves working out what it is that the Client wants to achieve. Is it the payment of money? Is it the avoiding of paying money? Does it want other outcomes? Does it want a ruling whilst the project is ongoing that there has been a variation? It might want to give the other side or the Contract Administrator a “hard word” to make contract administration more favourable for the balance of the project. It might want a quick result or it might want a slow one. [Read more…]