Covid-19 is leaving many casualties in its wake. This is not limited to the human casualties. Many companies will have gone out of business. Many contracts will have, technically been breached and people will have suffered loss and damage. Many employees will have lost their jobs, or had changes of terms imposed on them. People will – understandably – feel aggrieved.
In the world of litigation, there are many different types of claim and many reasons why people feel the need to bring them. Covid-19 has not only given rise to circumstances in which a myriad of good claims are likely to arise, but has also left a society where lots of people are – or may feel – worse off than they were before. People may feel that they have little to lose in making a claim now. Providers may therefore start seeing claims being made, or threatened, more often than they were used to in the past.
This article is intended to offer some general practical guidance for care providers which should help them if they are faced with a civil claim, or the threat of one. It is not attempting to cover all eventualities; claims and threats of claims can take many different forms and every claim will turn on its own facts. This article is also not intended to take the place of formal legal advice, and where a provider is faced with a claim or a threat of a claim we would strongly encourage seeking legal advice at an early stage.
When you receive notification of a claim or a potential claim, the first thing to remember is do not panic. It is worth noting here that just because a letter comes from a solicitor or a trade union, or even a court or tribunal, and looks very official and legal, it does not mean the claim is a strong one or that it cannot be robustly defended.
Do not ignore it. Read the papers carefully and take a view on what is being alleged as soon as possible. Whether the claim is legally strong or not is probably beside the point at this stage. Think it through. Is the claim totally without merit or might there be something in it? This would be a good time to obtain legal advice as it is often at these early stages that your approach and response to a claim can significantly impact how the case unfolds.
Allocate someone to deal with it. This person should have sufficient knowledge and access to records to enable them to move things forward and take strategic decisions, and who will have the time and capacity to deal with the matter for the foreseeable future. Think of litigation like project management.
Try and ascertain what stage the dispute is at. It is worth distinguishing between the “pre action” stage and the “proceedings” stage of a claim. What stage the dispute is at will be relevant to your obligations and the rules and the timetable(s) which will apply, and will be relevant to some important strategic decisions you might need to take.
Take note of any deadlines. Deadlines can come in the form of orders from the Court (e.g. “you must do XX by XX”), deadlines set out in the procedure rules (e.g. a party has 14 days to file a defence) or requests from an opposing party (e.g. “if you do not respond by…”). It is important you know when deadlines are. Cases can be lost by failing to meet deadlines.
Take note of any requests for information or evidence or action. You may not have to provide/do what you have been asked for but it is important to understand what, if anything, an opponent is asking to see, or asking you to do. This will help in a number of ways and not least, will help you to understand the case being made against you. Additionally, if proceedings have been formally commenced and you fail to take certain steps required of you, there can be very significant consequences.
Take note of what the opponent wants from the claim, and consider why they want it. Not every claim is for money. Some claims are economically or commercially better to settle than to dispute, or there may be a suitable compromise to be found. However, this should be looked at in the context of the claim, the underlying facts and in conjunction with your legal adviser.
Be aware of your own obligations. Even if you do not instruct solicitors, procedural rules still apply. This means you will be expected to take certain steps and do things in certain ways (even if you did not know that to be the case). Your obligations might not always be set out for you by the Court or your opponent. If you don’t know what your obligations are, you are unlikely to be able to plan for them, or meet them. This could impact the case and leave you exposed.
Consider the evidence you have. This includes the good and the bad. Once you have taken stock of what is being alleged and what position you are likely to take, you may want to think over what evidence will be available. It should also be noted that you cannot, and should not, seek to destroy evidence which may be relevant to the claim, even if it might hamper your defence. Instructing a solicitor early on can help you work through evidence and might assist you in claiming “privilege” over certain materials.
Consider any potential counterclaims, or other defendants. For example, if you are being sued by someone for damages arising out of a breach of contract but they have not paid you some money you were due under the contract, you may have a counterclaim. Or if the claim has resulted from someone else’s actions you may be able to bring them in as a party.
Consider any other potential claimants or the wider consequences of the claim. For example, if you are being sued by an employee, will the outcome affect other employees? Will other employees have the same claim? Is there likely to be adverse publicity or significant public interest? Ultimately you cannot stop other people making claims but you can take steps to put yourself in the best position in case they do.
Consider notification requirements. You may have internal policies which require you to notify certain individuals when faced with a claim. You may need to notify insurance companies even if you do not have cover for legal costs and in some cases your insurance may be invalidated if you do not. At the same time, be wary of making notifications when you don’t need to, particularly in respect of insurance matters. If you are unsure, seek legal advice.
Be careful about staying silent but be careful what you say and when you say it. It is almost always better to respond to a claim or threat of a claim than not but don’t be pressured into responding prematurely. If you do engage with an opponent, pick what you say carefully and be wary of making “on the record” admissions or statements which they could later use to undermine your position. This is where your early strategic decisions, in conjunction with your legal advisers, can prove crucial.
Be alive to costs risk and consider your budget. Whether you win or lose a claim, there is always the risk of costs in litigation, which is not limited to the money you might have to pay to defend a claim. You could be required to pay another parties’ costs. The costs rules can be complex, costs can escalate quickly and the costs risk can fluctuate during the course of a claim. You may or may not have insurance cover and may need to allocate budget to the matter.
Finally, seek legal advice, as early as possible. Often providers will only seek legal advice when they feel there is absolutely no other choice. However, having legal advice early can sometimes be crucial to a successful defence and can help providers avoid the many pitfalls which litigants can find themselves falling into. Early legal advice can often make all the difference and in many cases claims – or potential claims – can be put to bed very quickly with a well written response from a solicitor before the often long and stressful journey of litigation is started and it becomes more difficult to extract yourself from.
If you have been notified of a claim against you, or a claim is threatened and you wish to instruct a solicitor, or require advice on how to respond, please contact Ridouts on 0207 317 0340.