Strategies for effective litigation

By Suhail Dutt, Titus & Co
0
2050

Litigation of civil disputes in India poses unique challenges and demands creative solutions. Disputes adjudicated in courts take a long time to resolve, often resulting in huge costs and questions about whether the litigation ultimately achieved what it set out to do.

As of April 2007 there were 41,730 cases pending with the Supreme Court and another 25,504,926 with high and lower courts.

Suhail Dutt, Senior partner, Titus & Co
Suhail Dutt
Senior partner
Titus & Co

Specialist legal counsel with experience in the branch of law involved in the case and at the forum where the dispute is to be adjudicated must be chosen. Reputation can impact the results, as oral submissions and presentations often decide the outcome.

Beyond choosing the right counsel, other factors play an important role.

Organize and identify all relevant facts of the case and docket all relevant documents, correspondence and information. Properly preparing a dossier is important. A suit is maintainable only if the plaintiff demonstrates that the defendant owed a duty to him of which he is guilty of breach.

Precise drafting of the suit in the context of applicable laws and judicial precedents is critical. Pleadings must be drafted to counter all potential and likely defences. One must go through this process carefully to avoid wasting time with amendments. All relevant facts should be included from the beginning, as a party may not be permitted to raise new facts later.

Indian courts do not have time to go into minute details of each case and tend to pronounce their decision on one or two main issues. Therefore, it is important to focus on the main issues.

In cases where high stakes or complex facts are involved, senior counsel (equivalent to a Queen’s Counsel) may be retained. Most senior counsel rely heavily on briefing counsel when arguing so the briefing counsel must be fully prepared and the litigant should actively participate in the briefing process.

Due to the heavy backlog of cases and comparatively few judges, disposal of cases takes time. In a suit for recovery of money, a decree may be expected within four to five years of filing the suit. However, interim relief such as restraining orders or attachment of properties can be obtained quickly depending on the case.

Further, if a trial is conducted in strict accordance with civil procedures, a final decision could take two to three years. However, counsels often do not follow the procedure in its letter and spirit and delays occur. The litigant should follow the case stage by stage.

To minimize delays one should aggressively pursue the case at each hearing. Defence lawyers generally try to delay cases so it is imperative to push for the shortest possible dates.

Once in court, a strategically aggressive approach can save time, costs and enhance the chances of success. One must identify whether the hearing date is an effective date or merely procedural. Procedural dates don’t require an aggressive approach whereas effective dates require full attention to push the case forward.

Courts in India rely heavily on documentary evidence. The quantity of oral evidence should be short as it is vulnerable to contradictions and delays. Oral evidence should be brief and a brief written submission is beneficial.

Phases of litigation

There are four important phases in most litigations in India.

The first is the listing, when the court decides whether ex-parte relief is to be given. This is a crucial date since a proper and aggressive representation can result in an ex-parte interim order which protects the interests of the claimant and may induce a settlement.

The second important stage is after the pleadings are completed and the court decides whether the interim relief has to be made absolute until the decision of the case.

The third important stage is the trial. Litigating counsel must ensure that all relevant documentary evidence is placed on record and proved as required by the Indian Evidence Act. Most cases are decided on documentary evidence. Lengthy oral testimony is seldom beneficial.

The fourth and last crucial phase is the final arguments.

Cost recovery

The award of costs is governed by court rules which say that the maximum costs that a litigant can be awarded is approximately Rs25,000 (US$600) for the entire case. This generally includes expenses incurred on serving notices, production of witnesses and other miscellaneous expenses. Settlements often result in better cost retrievals.

India has a robust and independent judiciary and the courts do not hesitate to grant relief in appropriate cases. The right litigation strategy may help litigating parties enhance their chances of success.

Suhail Dutt is a senior partner at Titus & Co and heads the Dispute Resolution Practice Group of the firm. He may be contacted at: sdutt@titus-india.com

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