Defended a client wrongly accused of law breaking

How we built a robust team, were successful at trial & recovered costs

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Defended a client wrongly accused of law breaking

Our client obtained the usual pre-work approvals to excavate/construct a new basement, and extend the back of  his house. His neighbours, living in a wealthy part of London, believed the foundations breached building regulations. Perhaps motivated by the inconvenience caused by the building work, together they sued our client serving “expert” reports to make it appear as if they were in the right.

Our approach to resolving the dispute

We then:

  • Instructed an expert to prepare a report on the level and operation of the foundations.
  • Briefed counsel on the case, and put forward a settlement offer that protected our client’s costs position.
  • Prepared for, and won, at trial.
  • Recovered our client’s costs on the indemnity basis, which was a consequence of the claimant refusing our client’s settlement offers.

Had we lost the case, our client’s building costs would have exponentially increased, possibly preventing our client completing the project.

Evidence

Before proceeding with litigation, we honestly and critically reviewed the evidence. By definition, there isn’t a published legal decision about a case that’s exactly the same, as otherwise the dispute would not arise. We paid special attention to how the evidence would play out in court.

Using evidence to your advantage

To win, the evidence and legal authorities must point in your favour. After reviewing the evidence, we considered what legal authority was available to support the likely arguments that would be advanced in court.

Use of experts

The Court gave permission to rely on expert evidence. Our challenge was to ensure the expert we instructed was suitable to address the issue at hand. A carefully selected, properly deployed expert can be an invaluable forensic tool in litigation. In this case, the matter in dispute had to be determined by an expert. We obtained an expert’s report which was used to support our client’s legal arguments.

Selecting counsel

Choosing a barrister to represent the case at court is difficult. Barristers are well known as the ‘personalities’ who:

  • Present clear arguments on intricate legal points; and
  • Deliver clear strategies for winning at court.

Our expertise ensured the barrister we instructed possessed an in-depth and intricate knowledge of the case, and the regulations.

Negotiation

Prior to litigation, parties should resolve disputes, so far as possible, without going to Court. We knew this would be difficult. The other side were using this case to obtain an authority from the Court. However, mediation should always be considered as it can have an effect on costs at the end of the trial.

Tactical settlement offers

Consequently, we put in tactical settlement offers, that protected our client’s position on costs, and limited our client’s exposure. We also went to mediation. Mediation can:

  • Resolve disputes;
  • Reduce future acrimony by identifying and resolving the key issues;
  • Save proceeding with litigation which is time consuming, difficult and expensive.

However, this was one of the few cases where mediation was unsuccessful. Possibly, the other side were using this matter as a test case and wanted their day in court. We knew that the claimants would likely seek to rely on evidence adduced at the mediation to their advantage at trial. We ensured that all documents exchanged at the mediation were “without prejudice”.

Outcome

By ensuring we had built a robust team, we were successful at trial. The Judge found that the works being carried out by our client did not involve a reinforced underpinning, that constituted  ‘special foundations’. Our client completed his basement on his terms.

Costs

As the winning party,  our client substantially recovered his costs. It is a regrettable feature of the UK legal system that even when you win you don’t recover all your costs.

Alex Kleanthous is the partner heading the dispute resolution team. Alex has significant experience of using the rules and procedures of the legal system to maximise positions.