Prospects of success
Discussion
At the moment I'm involved in a Judicial Review against the PHSO. I won't go into details but I have a good Barrister on the case (Adam Straw of Doughty Street) and this isn't a shout-out for advice from Breadvan or the PH Pubbers. But it has raised a question that got me wondering.
Now counsel says I have good prospects of success. My solicitors agree with this. This makes me happy. I understand good prospects to mean at least a 60% chance of success. But does this mean that the other side will be told or should be told that they have at best a 40% chance of defending the claim? Is the law that predictable or could it be that both sides in a case could be advised they have 'good' prospects of success?
Obviously I don't know what the other side have been advised of so far (aside from an observation that they seem to not quite understand the question we are asking in the JR) but am interested in hearing from the experienced legal brains on here if it has been their experience that a case could have good prospects of going either way?
Now counsel says I have good prospects of success. My solicitors agree with this. This makes me happy. I understand good prospects to mean at least a 60% chance of success. But does this mean that the other side will be told or should be told that they have at best a 40% chance of defending the claim? Is the law that predictable or could it be that both sides in a case could be advised they have 'good' prospects of success?
Obviously I don't know what the other side have been advised of so far (aside from an observation that they seem to not quite understand the question we are asking in the JR) but am interested in hearing from the experienced legal brains on here if it has been their experience that a case could have good prospects of going either way?
Litigation is always an uncertain business, and judicial review is more uncertain than most forms of litigation because remedies in public law are discretionary. Some lawyers are better at giving realistic advice than others, and indeed some lawyers seem to do quite well by giving unrealistic advice, and presumably blaming the system when the advice turns out to have been over optimistic; but, assuming that you and your opponents have realistic lawyers, your opponents will probably have been told that they are more likely to lose than not. Deciding whether or not to oppose what looks like a strong claim may involve questions of policy, particularly in public law. I used to represent central Government a lot and would often advise (correctly, as it would turn out) that the Government was likely to lose a case, but was sometimes instructed to resist the claim anyway because of some policy imperative.
Sometimes people can be told they have little chance but still want to proceed.
Sometimes the lawyer advising is not as good as they should be. An example I can give is a really hard battle I had with a large firm, eventually I sat down in a room with her and we had a discussion about her case and strengths. She happily trotted out they would win because of X case.. What she didn't seem to know is that this case had been destroyed on appeal with strong and clear guidance set down. Which they had breached.... So when I told her she would lose on two strands of the three in that case, suddenly their settlement offer tripled...(after her face had drained and she went off to read the case)...
Sometimes the lawyer advising is not as good as they should be. An example I can give is a really hard battle I had with a large firm, eventually I sat down in a room with her and we had a discussion about her case and strengths. She happily trotted out they would win because of X case.. What she didn't seem to know is that this case had been destroyed on appeal with strong and clear guidance set down. Which they had breached.... So when I told her she would lose on two strands of the three in that case, suddenly their settlement offer tripled...(after her face had drained and she went off to read the case)...
PeanutGallery said:
........I understand good prospects to mean at least a 60% chance of success....
Have they given you the 60% assessment or is your understanding based on something else?No lawyer - unless they're pretty dumb - will ever give you a more than 75% chance of success in a contested case. As others have said litigation is uncertain. We had a tax case where our QC - one of the top 3 tax QCs at the time - said no court would accept the HMRC argument. He gave us the 75%likelihood of success - we lost.
Thanks for all the replies. I do think it a positive sign that I've been told by two lawyers (a barrister and a solicitor) and the legal aid agency (I've been awarded full legal aid for this action) that my prospects are good and was wondering why reaching a settlement or even having constructive talks in regard to a settlement (we had a mediation session where the other side made no proposals or even expressed a willingness to discuss my proposal which was pretty much a waste of time) is being so frustrating.
As far as I and my lawyers can see this isn't a case that should open the floodgates or change public policy or anything really. The only thing it will be is embarrassing because if the court decides in my favour then it's saying that a regulator failed to understand the regulations, the purpose of regulation and basically authorised an unlawful action. That will be a bit humiliating for the regulator and they have tried everything to deny getting this wrong ever since they admitted, in writing, that the advice they gave had "no regulatory basis".
As far as I and my lawyers can see this isn't a case that should open the floodgates or change public policy or anything really. The only thing it will be is embarrassing because if the court decides in my favour then it's saying that a regulator failed to understand the regulations, the purpose of regulation and basically authorised an unlawful action. That will be a bit humiliating for the regulator and they have tried everything to deny getting this wrong ever since they admitted, in writing, that the advice they gave had "no regulatory basis".
i think you need to take all figures on chances of success with a pinch of salt regardless what sort of industry is involved, this sort of estimate is generally completely subjective and depends massively on the motivation of the person giving the figure.
If they are trying to dissuade a client from taking a risk, a 60% chance is probably in reality an 80%+ and if they were trying to encourage the client to take a risk 60% essentially means about 50/50.
Medical industry can be a little different, as they have fairly strict ethical guidelines on this sort of thing, but even then I think it's hard for anyone to give a truly subjective accurate estimate when they themselves are part of the equation.
If they are trying to dissuade a client from taking a risk, a 60% chance is probably in reality an 80%+ and if they were trying to encourage the client to take a risk 60% essentially means about 50/50.
Medical industry can be a little different, as they have fairly strict ethical guidelines on this sort of thing, but even then I think it's hard for anyone to give a truly subjective accurate estimate when they themselves are part of the equation.
Again thanks for all the responses it's helped me to understand what is going on a little bit better. If I may be selfish and indulge in a little more of BreadVan and the other lawyer types time BreadVans response did raise a further question.
My understanding of a part of what BreadVan was saying was that at times he was instructed to take on a cause he believed would lose and it got to me wondering how do Barristers and Lawyers approach dealing with cases where they know they are on the losing end, or rather likely to be, and in spite of their advice to try and settle the client instructs them to fight?
My understanding of a part of what BreadVan was saying was that at times he was instructed to take on a cause he believed would lose and it got to me wondering how do Barristers and Lawyers approach dealing with cases where they know they are on the losing end, or rather likely to be, and in spite of their advice to try and settle the client instructs them to fight?
Dr Johnson:
Sir, a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge. Consider, sir; what is the purpose of the courts of justice? It is, that every man may have his cause fairly tried, by men appointed to try causes. A lawyer is not to tell what he knows to be a false deed; but he is not to usurp the province of the jury and of the judge, and determine what shall be the effect of evidence -- what shall be the result of legal argument. As it rarely happens that is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points of issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communication, he has the advantage of his adversary, it is an advantage to which he is entitled. There must always be some advantage, on one side or the other; and it is better that advantage should be had by talents, than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be a very just claim."
And also this one:-
Boswell: "But what do you think of supporting a cause which you know to be bad?" Johnson: "Sir, you do not know it to be good or bad until the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to which you urge it; and if it does convince him, why, then, Sir, you are wrong and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge's opinion." Boswell: "But, Sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion, when you are in reality of another opinion, does not such dissimulation impair one's honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with friends?" Johnson: "Why no, Sir. Everybody knows you are paid for affecting warmth for your client; and it is, therefore, properly no dissimulation: the moment you come from the bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the bar into the common intercourse of society, than a man who is paid for tumbling upon his hands will continue to tumble on his hands when he should walk on his feet."
Sir, a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge. Consider, sir; what is the purpose of the courts of justice? It is, that every man may have his cause fairly tried, by men appointed to try causes. A lawyer is not to tell what he knows to be a false deed; but he is not to usurp the province of the jury and of the judge, and determine what shall be the effect of evidence -- what shall be the result of legal argument. As it rarely happens that is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points of issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communication, he has the advantage of his adversary, it is an advantage to which he is entitled. There must always be some advantage, on one side or the other; and it is better that advantage should be had by talents, than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be a very just claim."
And also this one:-
Boswell: "But what do you think of supporting a cause which you know to be bad?" Johnson: "Sir, you do not know it to be good or bad until the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to which you urge it; and if it does convince him, why, then, Sir, you are wrong and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge's opinion." Boswell: "But, Sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion, when you are in reality of another opinion, does not such dissimulation impair one's honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with friends?" Johnson: "Why no, Sir. Everybody knows you are paid for affecting warmth for your client; and it is, therefore, properly no dissimulation: the moment you come from the bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the bar into the common intercourse of society, than a man who is paid for tumbling upon his hands will continue to tumble on his hands when he should walk on his feet."
PeanutGallery said:
how do Barristers and Lawyers approach dealing with cases where they know they are on the losing end, or rather likely to be, and in spite of their advice to try and settle the client instructs them to fight?
It doesn't happen too often to me as my clients pay privately.However, I had one where I knew I would win the first part of the case but the outcome would be the same because of what my client did. I told him this. He wanted to clear his name and was no worse off if I lost basically. I managed to settle during the first morning of the hearing, whilst the court were reading the documents provided, I had a chat to the other side. Got him cleared.
PeanutGallery said:
The only thing it will be is embarrassing because if the court decides in my favour...
A few years back a public sector organisation (about a dozen employees) pulled out of a project with us days before it was to begin.We'd invested and committed to it, so, we referred them to our terms of cancellation. All's fine, we mutually read through the terms over the phone and they say they'll consider what to do in light of this.
A few days later, I get a letter from the head of the organisation, telling us that as apparently they have never received anything in writing from them, at all, that we don't have a contract with them.
This is of course disingenuous to say the least as not only did they read the agreement over the phone to me, but also, you don't call to cancel something you believe does not exist.
So, I write back, detailing the date records of the pertinent details posted, both terms and later confirming in writing what was agreed orally.
The head writes back a couple of lines again saying they'd not received anything, this time saying, '...if you don't like it, take me to court.'
So, we did. It was only for about £700, but considering the evidence we had it was a reasonable bet that they'd roll over.
I didn't expect a Defence to be filed, but the head of the organisation did write one - a critique of our terms we posted. The same ones that were not part of the contract as they swore they didn't receive them. No legal argument is put forward in the Defence, so we apply for summary judgment.
Roll on a couple of weeks before the summary judgment hearing, and we receive notice that the Defendant wishes to amend the Defence.
Roll onto the hearing, there is a totally rewritten Defence by a barrister, and a barrister in person who has had a 400 mile round trip for a 30 minute hearing. For a £700 small claim, so they pick up the costs, win or lose. Of course, in the hearing, I am able to reveal that their main witness is both unreliable, and the copy of the terms that the barrister holds is watermarked with the date that it was posted to the Defendant.
To save his own face from his actions, and the hole he had dug, the head spent what must have been the value of the claim simply not to lose a preliminary hearing.
My point is, when it's not your money money to lose, it's easy to keep throwing money at litigation, and in some people's best interest!
Don't take that the ability and desire to litigate means that they think they are going to win.
Breadvan72 said:
I have acted for many public bodies and in general they are very costs conscious and aware that they are custodians of public funds. The worst ones for digging in are Secretaries of State when there is a political/media sensitive issue at stake.
I would to some extent agree with this. We had a mediation where they seemed to emphasise the cost to the public purse, but at the same time didn't make a proposal to try and settle the matter, it struck me that they didn't really know what to do and that nobody was prepared to take charge on their end.As it was their protestations didn't really get them anywhere because their lack of a proposal has forced us to continue with the action. We discussed whether to try again with an appointed mediator, but my barrister basically said that if a mediator was present it would be somewhat akin to Mrs Doyle offering them a cup of tea.
PeanutGallery said:
As it was their protestations didn't really get them anywhere because their lack of a proposal has forced us to continue with the action. We discussed whether to try again with an appointed mediator, but my barrister basically said that if a mediator was present it would be somewhat akin to Mrs Doyle offering them a cup of tea.
I like the cut of your barrister's jib.Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff