Getting your house in order…preparing for litigation

Who has been involved in the events leading to the dispute?

• Identify who is likely to hold relevant information. There may be no need to speak to them yet to obtain a detailed history but they should be instructed to preserve all documents that may prove relevant, whether favourable or not. Written records in relation to preservation requests should be kept.
• If any of the individuals have left the business then steps should be taken to ensure their documents (both hard copy and electronic) are not deleted and any laptops, mobile phones etc are kept.
• Instruct your IT department or service provider to suspend any auto-deletion protocols which may result in relevant documents being destroyed after a certain period of time.
• Liaise with HR to ensure that you are notified of any resignations, dismissals or redundancies of any relevant personnel so steps can be taken to preserve documents and, where necessary, to obtain witness evidence.

 

Who is negotiating any settlement?

Make sure that anyone negotiating settlement understands when to use a without prejudice heading on correspondence or to indicate that a call/meeting should be held on a without prejudice basis. In many cases you will want such discussions to be without prejudice so that they can’t subsequently be referred to in court. However, there may be some communications which it is important are open and are kept separate from settlement negotiations, particularly if notices need to be given to comply with the contractual machinery.

 

Watch out for privilege

Make sure that those involved in communications in relation to the dispute understand when litigation privilege will arise and when it won’t. It’s important to avoid new documents being created e.g. board minutes or internal team minutes that may not be protected by privilege. Remind those involved that the definition of “document” is wide and they won’t escape documents being disclosed by using more informal means of communication such as texts or Whatsapp messages.

 

 

Mind your language!

It’s amazing how many times inappropriate language can find its way into business communications, particularly when tempers are running high. Whether there’s a dispute afoot or not, hammer home the risks of using such language. Make sure staff know not to send any communications that they would be embarrassed to have read back to them in court. It’s not just court disclosure that merits this approach but also the prevalence of data protection subject access requests that can give unnecessary ammunition to individuals requesting personal data. No more rude comments about customers in customer call logs…

 

Escalation clauses/foreign law/foreign jurisdiction

• Check the contract before the dispute progresses to see if there is an escalation clause to be followed.
• Make sure, particularly if you are dealing on another party’s standard terms and conditions, that English choice of law and jurisdiction apply. Even if both parties are UK based, occasionally a random choice of law clause can slip in from a party using an overseas parent company’s standard terms and conditions. If English law/jurisdiction does not apply then seek early advice from a lawyer in the relevant jurisdiction to highlight any unforeseen risk areas and to consider the scope of any privilege rules that may apply.​​