Plain Guide to Litigation: Preparation for hearings

4. Disputed facts

You should always try to have a clear idea what disputed issues you need the court to decide. The Court does not want parties to get bogged down in written pleadings. But we do encourage parties to use written clarification. If there is any real doubt about any assertions of fact or law made in the pleadings, remember that you can write to your opponent to try to clarify matters, or, if the point is important, move the Court to require an answer on the point.

Often it is only at the stage of preparing for the hearing that the real issues are clearly recognised. There are many reasons for this. It may seem obvious that parties should not engage on any litigation without having given full consideration to the strength of their own case. But, however convinced you are of the justice of your own position, it must always be remembered that the strength of your case can only be measured by reference to your chances of persuading the court to find in your favour. You can only assess that by considering, not only the quality of evidence you have to support you, but also the quality of evidence your opponent may have to support their side. In short, whatever the apparent strength of your position at the beginning, you must keep assessing it in light of developments. Your opponent will be doing the same. Try to keep putting yourself in his or her shoes.

People often get caught up in litigation without having had the time, or opportunity, for a very rigorous scrutiny of such matters. When preparing for the hearing things become much clearer. For example, it may become obvious that only a few points are actually in dispute. There may be no facts worth disputing. Or, it may become clear that you will have no evidence to challenge some point and as a “damage limitation” exercise you may have to try to see if a tolerable version of the facts can be agreed.

At risk of undue repetition, we stress that, before the hearing, parties or their solicitors should try to discuss what is really in dispute. Where appropriate a joint minute might be used to clarify some matters. Sometimes, instead of trying to narrate what is agreed, it is easier to try to set out for the Court a statement of the particular questions which the Court is being asked to answer. Indeed, it is always a good exercise, when preparing for a proof, to write out such a statement for yourself. Even if you cannot agree things with your opponent, you can use it as a check list to see what evidence you need to persuade the court that you are right on each of the disputed points.

At the start of the hearing the Court will often try to make sure that it has a sound understanding of what is truly in dispute and what is not. It may adopt the course of setting out a list of points of fact or law which seem to be agreed or which are not likely to be disputed. It is very important to realise that this does not mean that the Court has reached a conclusion on any such material or that it thinks that parties ought to agree any parts of it. On the contrary, it is our experience that this process often shows the Court that certain points which seem agreed or unimportant on the written pleadings are indeed contentious and important. The process helps prevent the Court from going into the proof with any mistaken assumptions. If the Court does suggest that one or other party may face an uphill task on one point or another, this is no more than a warning that the point is a difficult one and will need proper argument. In other words, the reason for any preliminary discussion is to try to ensure that there is no misunderstanding, either by the parties or the Court about the nature of matters which the Court will have to decide.

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