Our partners are experienced insolvency practitioners who have instituted several hundred pieces of commercial litigation and have managed some of the longest and most complicated cases held in Australia. Accordingly we are experienced in the costs, benefits and risks associated with expensive and protracted legal disputes and believe that often insufficient attention is given to trying to resolve disputes in a more sensible and commercial manner.  We believe that our experience gained over many years of practice may be of benefit to corporations which have concerns and/or doubts about the costs, delays, efficacy, merits, risks and objectivity of reporting, of ongoing significant litigation in which they are involved.

We would be pleased to meet with your counsel, senior executives and/or board members to explain our proposal to conduct a confidential and privileged, strategic and independent review of significant commercial litigation in which your corporation may be involved, either as a plaintiff/applicant or defendant/respondent.  It is possible that parties to litigation will relate to some or all of the difficulties which we have encountered in many pieces of litigation. Complaints and observations received from various clients include the following:

  1. Escalating costs which bear little resemblance to previously-tabled litigation budgets.
  2. A concern that the matter is being over-serviced by an unnecessarily large legal team.
  3. A scatter-gun rather than focussed approach being taken to litigation.
  4. A less than commercial attitude being taken by lawyers towards litigation.
  5. Disillusionment with barristers who may have provided very positive initial advices on prospects only to weaken in their resolve as trial approaches, following significant legal expenditure in reliance on such advice.
  6. A perception that some legal firms have a practice of retaining barristers who rarely challenge their opinions concerning the strength of their legal arguments.
  7. Difficulty resolving litigation because of personality differences/clashes between respective solicitors and barristers.
  8. An approach by the legal team of “win at all costs” coupled with “take no prisoners”, which nearly always results in litigation budgets being significantly exceeded.

Our proposal:

Upon execution of undertakings of confidentiality and disclosure, and confirmation of no conflicting interests, we will expediently conduct the following and provide a related privileged report to the board and legal counsel:

Meet with key litigation personnel including solicitors, counsel and management, to quickly understand the key issues in dispute.

Determine the likely court timetable for hearing of the matter and the likely delay until final resolution.

Review pleadings and status of interlocutory proceedings. Assess whether extraneous parties and disputes are involved and whether proceedings can be further simplified/streamlined.

Determine whether marginal interlocutory disputes have been allowed to delay commencement of trial.

Review legal advices and consider whether further such advices should be obtained. In particular, is the client’s ultimate legal position, strategy and direction determined by a key issue on which a second opinion should be sought? An example may be useful here. We were asked to conduct a litigation review for a Japanese conglomerate in relation to a claim brought in the NSW Supreme Court. Senior Counsel had advised that an exclusion clause to an Industrial Special Risks policy would most likely be invoked by the underwriter to deny indemnity on an $80m claim. The client decided not to pursue this claim however we procured a second, contrary opinion with which the first Queens Counsel subsequently agreed. The litigation was recommenced and a very significant settlement was obtained. It is difficult to exaggerate the importance of this particular issue as many millions of dollars of litigation costs and/or recoveries could be at risk if a single key litigation premise is wrong.

Determine whether compliant barristers have been retained. For example, do the instructing solicitors brief widely or always within a limited circle at the bar who may become reliant on such support.

Review independent experts’ reports.

Review litigation budget, level of costs incurred to date and projected, and consider commerciality thereof in comparison, inter alia, with the amount in dispute. It is surprising how often costs can exceed the amount actually in dispute.

Determine whether Court-imposed timelines are being met and whether such discipline is being imposed by a client’s advisors on their opponents.

Ensure that an appropriate litigation reporting regime is followed.

Determine whether resources have been applied in determining the opposing party’s financial and commercial position, obviously from publicly-available sources.

Assess level and nature of settlement attempts/negotiations.

If appropriate and necessary assist in fresh attempts at commercial resolution including attendance at mediation/arbitration and/or settlement negotiations.

Assess whether consideration has been given to non-litigious resolution of the dispute.