The elephant in the room – proving a negative in litigation

File:African Bush Elephant.jpgThe apocryphal story goes around that Ludwig Wittgenstein challenged fellow philosopher Bertrand Russell to prove that there wasn’t an elephant in the room in which they were sharing afternoon tea.

It’s a fairly self-indulgent challenge between intellectuals but it does highlight a feeling we’ve all had. It’s easy to prove that there’s an elephant there, if there is, by pointing to it. Proving that something isn’t there is more problematic. You have to point to everywhere that it isn’t.

Former Shell Legal Director Peter Rees QC recently observed that litigation and compliance are the most significant risks currently facing corporations. In litigation, defendants sometimes find themselves in the position of having to prove that something didn’t happen against an allegation from a claimant that it did. That always puts the defendant at a disadvantage. The claimant will give evidence of what they say happened. What evidence can the defendant give?

This asymmetry will be all the more keenly felt in England and Wales following the recent Jackson reforms to personal injury litigation. The former control mechanisms have been swept away and the Ministry of Justice believes that this is likely to result in more claims against businesses. Claims that would have previously been screened out will now be run because of the economics of the restructured claims environment. All my instructing solicitors are now confirming this to me.

Ironically, the instrument of this upwards pressure on claims risk is Qualified One-way Cost Shifting (QOCS). QOCS also pretty much prevents a business who successfully defends a claim from recovering legal costs against the unsuccessful claimant. In any event, legal costs are likely to be dwarfed by irrecoverable costs to the business from having key people distracted from the value-creating process.

All that means that businesses need to get better at stifling spurious claims at the outset. The twin keys to that are process discipline and record keeping.

It always saddens me when I have to advise businesses to settle doubtful claims simply because their record keeping was not capable of setting them up to rebut an allegation.

There are three principal elements to staying ahead of the game:

  • Ensuring that risk assessment identifies where record keeping would support the organisation’s narrative of prudent operation and regulatory compliance;
  • Implementing a system of process surveillance to foster process discipline; and
  • Building a document retention system that ensures that such a record can be interrogated to provide a compelling picture of conscientious management and risk mitigation.

A well designed document retention system is a key part of managing risks.

I find it instructive and encouraging that in Divya & Ors v Toyo Tire and Rubber Co. Ltd & Ors, Toyo Tire managed to persuade the court that it was very unlikely that a road traffic accident could have been caused by a manufacturing fault in their tyre.

I do not advocate rigorous process management as a net cost motivated by defensive operations aimed at providing a patina of compliance. That is not what succeeded at Toyo Tire. Rigorous process management reduces waste, improves socially recognised customer reputation and streamlines cashflow. Its potency in litigation is a bonus.