The question I have most been asked in almost 20 years of litigating is why is the opponent (still) fighting.
Every claimant thinks their claim is a good one, hence they brought it in the first place, and they can't believe the defendant is (still) fighting. So assuming on balance you do have the winning case...
In comes the defence to the claim and the claimant asks, how can they possibly think that's a good defence. Disclosure of documents takes place and the claimant asks, well nothing in there helps them! Evidence is exchanged and the claimant yells don't they know they are beaten - how can they still be fighting!
The same is true on the defendant side of a defendant who thinks their defence is a good one, and they therefore can't believe the claimant is (still) fighting.
This perfectly natural reaction can cause a lot of stress and frustration which causes harm to your own case, because if you are stressed and frustrated you will not prepare and conduct your case as well, and is (to some extent) avoidable.
So I attempt to answer the question, why are they (still) fighting. There can be a number of reasons:
- Your opponent has a policy to fight. Believe it or not, some parties will have a policy to fight. They will deny a claim in response to a letter of claim, without seriously analysing whether the claim has merit, or perhaps even if they see the claim has merit, because a policy of 'denying everything' serves them well. Very few claimants who present a claim in correspondence will go on to issue proceedings. They won't want the cost risk or the stress or the time it will consume. If they are denied a remedy in response to piping up in correspondence, most claimants will simply go quiet. They might not rush to deal with the defendant again. They may not become a promoter of the defendant. Indeed, they may become the opposite. But they won't sue. In the narrow sense of the individual claim, the defendant will get away with it. Some parties will have a similar policy even post-proceedings. They will defend every claim on whatever basis they can think of. Most claimants will tire of the stress, time and expense of litigation and will eventually give up, or settle on very reduced terms. You might have an opponent playing a war of attrition.
- Your opponent, wrongly, believes it is right. Your opponent is a litigant in person, or perhaps has lawyers focused on the process rather than astute early advice, or whatever, and has simply got it wrong. The seller of goods to a consumer, for example, who thinks it has a 'legal right to repair' but when, after goods were rejected on day 5 after delivery, does not. They are going to have a rude awakening at trial, but the claimant is sadly going to have to run it all the way. Your opponent is not going to listen to you, however eloquently and comprehensively you demonstrate they are misguided.
- Your opponent is fighting on because of reasons other than the merits of the claim. It might not like you. It might be short of cashflow to pay the claim right now. It might be stretched dealing with other projects or disputes to properly engage with your dispute right now. It might be so swollen with pride and ego that it is incapable of admitting it might have done wrong.
- Your claim (or defence) is not a 'slam dunk' defence, and even though your opponent thinks it is more likely to lose than not, it has a high appetite for risk and is willing to incur the time and cost of litigation for the possibility (even if low) of winning.
- Your opponent thinks there is a chance a Court will believe 'its truth' rather than 'the truth'. Yes, the law might be entirely against this particular defendant, let's say. But the defendant thinks that the law is wrong and is going to gamble on hoping to persuade a judge that its plea to its own imagined version of justice will trump the law and the evidence. An example might be a defendant with less cash and assets than a claimant. The claim might obviously be a just one, and the defendant no realistic hope of defending, but the defendant tells itself that it is the poorer entity, and that it would be entirely unjust for it to have to fork out for a claimant who 'doesn't need the money'. Sadly such considerations will be irrelevant to the issues at trial.
- Your opponent has an unorthodox view of the meaning of 'success'. I once saw a defendant walk away at the end of a trial of a modest value claim - for some £35k or so - believing that having fought to trial and lost was the right thing to have done because the claim was assessed at 'only' £34k (saving the defendant £1k), notwithstanding that the costs, interest and other penalties meant its overall outlay was by the end of the trial more like £100k. The small reduction to the amount awarded compared to claimed meant the claim had, the words of the defendant, 'proven the claim was one to have fought'. Each to their own.
- There is a strategic or tactical battle in the way of paying. For example, if a defendant thinks it has a 51% chance of striking out a claim because of some technical or procedure issue, and wants to chance its arm at that, but knows that the underlying claim is one it has no real prospect of defending and will pay if the strike out attempt fails.
- The battle is a faux one. Perhaps your opponent wants you to spend all of your money on litigation, to empty your bank account when in 6 months time it attempts a hostile takeover of one of your subsidiaries, or so that you can't afford the fight when it brings its own larger claim against you at a later date.
- Your opponent is trying to make new law. A rarer problem than the others, perhaps, but if your opponent has set aside a budget to try to chance the law in a certain area, perhaps because it has a wide exposure every year based on the way the law stands, brace yourself for the risk of the claim going to appeal.
- Your opponent is overly aggressive and litigates like it is still the 1990s. This is the opponent with a policy of denying but on steroids. Expect to have to survive countless interim applications, and a squabble over every single detail, and a protracted period of litigation as a result, before the right eventual result on the other side.
- Your opponent is badly advised. Solicitors are supposed to be professionals and are bound by professional standards and ethics, but that doesn't mean that sometimes (hopefully rarely) they give bad advice or even simply be slow to give advice which, if given, might bring matters to a head sooner rather than later.
- Your opponent is mired in bureaucracy or administration. The apparent 'fight' is merely their own internal snail pace. They might eventually admit and pay the claim - but ten forms need to be filled in first, and 5 meetings must be held with 30 people available to attend each one...!
You might be able to think of, or indeed may have experienced, others. If so, please do share.
Of course, it is worth keeping under review at every stage your prospects of success. Never rule out that your opponent is fighting on because it is likely to win!
That aside, if you are unfortunate enough to find a defendant fighting for reasons other than the strict legal merits and regardless of the likely outcome, take heart that, assuming your case is properly prepared and conducted, and assuming all goes well at the eventual trial (if indeed you get that far - more claims settle before than run to trial) then justice may be delayed but eventually done. There has to be a process, after all, to enable a fair trial for both parties. A party who waits to pay for any of the foregoing reasons, and eventually loses, will pay a price in having to fund the litigation longer, and the cost of the additional management time consumed, but pointing that out might not impact on the point at which they settle, if they are fighting for the 'wrong' reason!
While it is not worth getting overly stressed or frustrated about the issue, if you find yourself a party to a dispute and asking yourself 'why are they (still) fighting' you should find reassurance in that you are asking a good question, even if you don't like the answer, because analysing an opponent and the reasons for its conduct is - if you can remain relatively calm throughout - a useful exercise. If for example an opponent isn't paying because it is skint, it is worth knowing that before you spend too much time pursuing them. Equally, if an opponent is acting unreasonably, you might want to record that, for when representations are later made about conduct and costs.
