Friday, 26 September 2014

"Without prejudice" correspondence in Scotland and England: a divergent approach

It makes the sales pitch all but impossible, but you have to be honest. Litigation is costly, time-consuming, stressful and unpredictable in outcome, however clear the facts and law might seem to be. Clients can think that when their lawyer points this out to them it is just a back-covering exercise in case things go wrong later, or that the risk isn't really that great because the facts and the law are so clearly on their side. It can therefore be helpful to put it this way. Most disagreements in life settle without a lawyer being instructed. Most legal disputes are resolved without the need for court action. Most actions that are raised settle before judgment. So, the cases that do end up going to judgment after proof or debate comprise the tiny percentage where both parties have decided that the time, worry, cost and risk of proceeding all the way are worth it because they're going to win in the end. And 100% of the time, one of them loses.

For all those reasons, commercial litigators know that one of their first duties is to try to persuade their client not to use their services at all, at least in the sense of avoiding litigation. Even once action is raised, they must always be thinking about whether an acceptable settlement can be negotiated before the fee explosion that accompanies a proof hearing. 

Friday, 15 August 2014

Harassment and the service industry: let the seller beware?

If there has been a more stirring introduction to a court opinion than the following, I haven't read it recently:

“It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson, the claimant in this case.”

So said the English Court of Appeal in 2009 when it upheld Ms. Ferguson's complaint against British Gas Trading Ltd, brought under the Protection from Harassment Act 1997. To some, Ms. Ferguson may well be a hero; to others, perhaps less so. In any event, on closer consideration, the approach the courts have adopted in this and other applications under the Act is clearly broadening the scope of its applicability far beyond the original intention and, moreover, in ways of direct and critical relevance to the day to day work that clients and their lawyers do.