If you hear the sound of trotting outside…

 

If you hear the sound of trotting outside…

don’t assume it’s a horse because it could be a zebra.

Ok, I know it’s fairly unlikely to be a zebra, so assuming that it’s a horse that you can hear is fairly reasonable, but if experience has taught me anything it’s to never take things for granted, so if all else fails, check before you make assumptions.

Or if you are going to make assumptions, at least be aware of the fact that you could be wrong, so it’s best to keep an open mind and be prepared to change your strategy.

For example, when you send out a pre action protocol letter to the other side on Monday, telling them that you’ll issue proceedings in the absence of a satisfactory response by 4pm on Friday, if you don’t hear back from them, you could assume that they know they are in the wrong, and have no defence to what you are saying.

That is a perfectly reasonable assumption.

However, I know from my own experiences that I don’t like being held to unreasonable deadlines by the other side.  I also know that if you don’t hear from me, you’re highly unlikely to issue proceedings at 4.01.  You probably won’t have prepared the paperwork, and you’ll probably leave it until Monday morning.

Probably.

Similarly, if you make an offer to the other side to settle, and say that it’s your final offer, and the other side don’t accept, you may think that that means they expect we’ll be going to court.  They can’t be thinking you’ll make another offer, because you’ve said it was the final one.  But just because you said you weren’t going to increase your offer, doesn’t mean you can’t still be persuaded to pay a bit more to avoid proceedings.

The only thing I can tell you with any certainty about litigation is that there is never any certainty.  Whatever you may think the other side are doing, or thinking, or believe, you might be right, but it could still be a zebra outside.

You just never know.

For this reason, no matter how good your case or defence is, and no matter how confident you are that the other side are bluffing, you should always at least consider mediation, even if you eventually decide not to do it.

Or better still, make sure all of your paperwork and contracts are in order before you even start.  It won’t protect you from every type of claim, but it will significantly reduce the risks.

Kleyman & Co Solicitors.  The full service law firm.  Because it’s rarely black and white.