EVIDENCE AND DISCOVERY IN ARBITRATION – ESTABLISHING EQUILIBRIUM
CD: How important is early case assessment to expediting the arbitration process? Do parties need to consider potential discovery requirements at this stage?
Robinson: Early case assessment can be a powerful tool in assessing the merits of a particular dispute or arbitration process. Parties can quickly obtain the key documents upon which the case is likely to be founded and from there ascertain the relative strengths or weaknesses of their claim. In addition, the ability to accurately scope the likely requirements for subsequent document review and production allows the client to make a more informed commercial decision with regard to their potential investment in the dispute. Many clients see litigation matters as investment decisions and the commitment of potentially millions of pounds needs to be based on the most accurate assessment of the likely chance of success couple with the best estimate of potential costs.
CD: What challenges tend to arise when trying to quantify damages and assess value attached to a dispute?
Robinson: Ascertaining the potential damages or value of any dispute can be very challenging and the opposing parties are likely to have drastically differing views as to the financial impact of a dispute. For example, in a recent matter we have seen two parties arguing the potential value of the claim in litigation with one side stating that the claim is worth circa £10m and the other side claiming that the actual value is nearer to £100,000. It is therefore important to engage your experts at an early stage to ensure a credible and accurate assessment of the potential quantum is made and then weighed against the potential costs of the litigation or arbitration process in order to arrive at an informed decision as to whether the case should be pursued. We are seeing clients showing a greater interest in leveraging technology in order to provide the data upon which the legal team and expert can make a far quicker assessment of the case.
Jul-Sep 2014 issue