Top 10 tips arising from the Supreme Court 24 September 2019 decision

Since 1983, I have spent most of my legal career involved in Litigation / Dispute Resolution. Without any doubt the landscape has changed considerably but yesterday’s disastrous decision for the Government gave me food for thought:

  1. Preparation is very much the key to winning a piece of litigation or avoiding a defeat. Admittedly all the parties were running at 100 mph but despite all the heavyweight lawyers advising the Government, it looks like a monumental error happened with a failure to present a witness statement with a statement of truth signed off by the Prime Minister. The old adage is that a failure to prepare-prepare to fail.
  2. Whether it’s a Government or a Company or even individual, always carry out a detailed risk analysis when making strategic or risky decisions. On this occasion the Government appear to be blinded by their own advisers and completely underestimated a challenge once the decision was made to proceed with the suspension of Parliament.
  3. Try and think what the opposition would do in case there is a challenge and how they would attack through the courts; putting yourself in the shoes of the other side gives you a sense of perspective.
  4. Never underestimate the power of the courts. People still say that the English Justice System is the best in the World. On this occasion, the Government probably thought that time would run against those opposing the decision to challenge the suspension. The Government were clearly caught out with the speed upon which the various hearings took place with the Supreme Court in effect dealing with the matter through what’s known as the Leapfrog Procedure.
  5. Appreciate the risks of litigation. There is no such thing as a winner or a loser, and Litigation does carry significant risk. There is always a sense of optimism in one’s own case and Judges don’t always get it right, but on this occasion the result was emphatic; there was no dissenting Judgment which clearly sent a strong message that the Government made a botch of its decision to prorogue Parliament.
  6. Give careful consideration to all parties positions in Pre-Action correspondence. It would appear that the Claimants engaged in Pre-Action correspondence setting out their positions, but the Government continued full steam ahead without necessarily forensically analysing the legal position.
  7. Think about the consequences of losing. On this occasion, the issue of costs will not be particularly troubling the Government but losing parties can be destroyed by adverse costs orders. However, the publicity and damage caused to the Government could have repercussions for several weeks and months. Most court hearings of this type are heard in public, if one is going to put one’s linen on the washing line make sure it’s as clean as new.
  8. Think about the aftermath of either a win or lose. The Government appear to have its head in the sand. The writing was on the wall when various questions were posed by the 11 Justices during the Hearing. It was very clear that the decision was going to be announced on 24 September and yet the Prime Minister appeared to underestimate the impact of an adverse decision. Plan for crisis management in the event that matters do not go to plan.
  9. Do not underestimate Alternative Dispute Resolution. On this occasion however, the Government were probably thinking it was an all or nothing result but with the matter heading to the Supreme Court perhaps there ought to have been another way of avoiding a public flogging.
  10. Be respectful of the Judiciary. What goes around comes around, and when questions were asked by the Justices what would happen in the event of a ruling against the Government, the Barrister appeared to be stuck for words and had not thought too much of what was going to happen. Even on a bad wicket or on the receiving end of a bad decision, be respectful and if necessary, praise the system and the Judges for the diligent way they approached this matter in a speedy and professional manner.

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