LITIGATION RISK, PROSPECTS OF SUCCESS & THE COST BENEFIT ANALYSIS

The uncertainty in the outcome to Court proceedings is referred to as litigation risk and arises from human unpredictability, the introduction of new evidence and the potential for varied judicial interpretation of the facts and law.

A party, a witness, a lawyer or a judge may not act as anticipated.  Evidence that only becomes available during a case may alter a party’s prospects of success.  One judge may take a different view to another on what most likely occurred and / or on the legal position.

What this means is that not even what appears to be a very good case can be guaranteed of success.  In the circumstances, a party’s prospects of success might be gauged generally as follows:

Very good           =            you are most likely to win

Good                    =             you are more likely to win than lose

Average               =             you are just as likely to win as lose

Poor                     =             you are more likely to lose than win

Very Poor            =             you are most likely to lose

Prospects of success are important because a party will incur a cost to pursue a case and the usual rule in litigation is that the Court will order the party that loses to pay a contribution towards the costs incurred by the party that wins.

In consequence, when balancing the prospects of success with the cost that will be incurred, that risk and cost should not outweigh the benefit that that the party hopes to gain.  That is more easily assessed where the benefit has a monetary value but becomes a more subjective and difficult exercise when there is none.

Simon Ingham

Simon Ingham qualified as a solicitor in Scotland and now practises in England, specialising in probate and property disputes.  If you have a dispute in England & Wales that relates to a will or inheritance, please e-mail  NewEnquiries-ContentiousProbate@chadlaw.co.uk.  Alternatively, if you have a dispute that relates to land or buildings, please e-mail NewEnquiries-PropLit@chadlaw.co.uk.  Otherwise, if you need advice about any dispute – or wish to try and avoid the possibility of disputes arising – please contact us by phone on 0800 015 0340 or e-mail NewEnquiries-Litigation@chadlaw.co.uk.