This book is only available in PDF format

Published: 1 September 2009
Pages: 91 pages

Introduction

Litigation is often perceived as a cumbersome, slow and expensive means of resolving disputes. Ineffective and unnecessary use of interlocutory applications can exacerbate this perception. On the other hand, appropriate use of interlocutories and effective use of case management procedures can significantly enhance the effectiveness of litigation. This will reduce overall costs, narrow the issues and, in some cases, facilitate settlement.

Litigation is a process aimed at facilitating the resolution of disputes. Judgement calls need to be made at almost every stage of the process. The High Court Rules provide for various procedural options, which are available at different stages of the journey. However there are seldom “right” and “wrong” answers as to when these various options should be pursued. Ultimately, it is your job as counsel to advance your client's case in the best way possible, while balancing competing interests including:

• Your client’s aim to “win” the substantive case (winning the war);
• The prospects of success in relation to any particular interlocutory application (picking your battles):
• Broader strategic and commercial objectives (no point “winning the war” if it drives your client into insolvency and destroys critical ongoing relationships);
• Costs, at each stage of the process;
• Delay, at each stage of the process;
• Your duties to the court (there are some lines you just cannot cross, no matter how much your client wants to “win”).

In order to achieve your client’s aims you will need to develop a strategy as to how to run your case effectively and efficiently, picking the right “battles” along the way and ensuring you take all necessary steps to clarify and focus the issues, marshal the key facts, ensure the correct parties are before the court, ensure the trial will run smoothly and minimise the risks of a hollow victory.

Effective use of interlocutories and case management are key to achieving these outcomes.