A litigation strategy is a forward-thinking plan that affects cases that are yet to occur. Such a strategy cannot be applied to cases, from either a defendant or claimant perspective, that already exist – that’s not a strategic process – it is reactive to someone elses strategy, or action.
A true strategic solution to litigation involves all claims from FNoL, and even before, if implemented rigorously/correctly.
This consistent end-to-end approach to all claims will change behaviours throughout the pre-litigation lifecycle due to the stated consistency existing all through the process. It is not envisaged that spend will be reduced on litigated cases; it will not. But those cases demonstrate the loyalty to the process/strategy that makes pre-lit cases settle with a reduced spend earlier within the process.
Is a Claimant strategy diametrically opposed? No. There are clear parallels that aren’t as far apart as you might think when you look at them closely.
It is where these two well-thought-out environments co-exist that real understanding is gained. Until that scenario occurs, you are not employing strategic thinking but remain predominantly reactive – if the end game isn’t influencing the opening whistle; you’re not doing it right.
If any of that sounds appealing to you – talk to us!
There’s lots of noise, perhaps not so much lately, regarding the 2008 regs that require a cancellation clause be incorporated in all credit contracts signed at the consumer’s home or place of work. I’ll not go into the progression of the various cases that covered these ‘unenforceable’ and, indeed, illegal contracts – that’s been done to death elsewhere.
However, what were the regulations supposed to do? Protect the consumer, right? In the credit hire context, is that the effect? I’d say no, in reality.
The hirer always has the ability to return the vehicle to the hire provider; there’s no obligation to continue with the vehicle. So, effectively, he can terminate the accruing costs under the terms of the agreed contract conditions and warranties. These provide ‘additional benefits’ to the consumer as dwelled upon in Dimond -v- Lovell. On returning the vehicle, the consumer can still avail himself of these benefits such as the right to continue with the credit agreement and for the hire provider to recover his losses from the tortfeasor.
Exercising the right to cancel leaves the consumer liable to pay, within a reasonable time, the accrued hire costs (at the “commercial rate”) and is left on his own to recover that contentious loss from the insurers of the at-fault party.
Consumer protection? Hardly!
Has anyone run this argument? Not that I know of and brains bigger than mine have been working on this for a long time. Although there was a recent case in the Appeal Court that addressed the cancellation regs in a different context that found against the serious affect of the regulations. See Robertson -v- Swift.