It's likely that few people now remember the exact alleged events of over two years ago, but the fateful decision to sue News Group Newspapers over a resulting story in the Sun came home to roost this week for Andrew Mitchell.
Litigation is a game of winners and losers and like all games it is not always fair. As litigators, clients always ask what are my chances of winning? Our answer always lies between 40 and 60%. Lawyers very often translate this into inexact words: “good”, “evens”, “poor”. Why? The answer is that winning depends on many factors, only some of which are ever known. There is the case law, the witnesses (both expert and lay), the legal team, and not least the judge. Then there are the interrelationships between all of these. Will you be assigned a judge who has made the law in the area? Does he have “previous” (good or bad) with the counsel on the case? All unknown.
Given this it is amazing that anyone chooses to litigate, but they do. Its not just Andrew Mitchell who bets the house (literally probably in his case) on a balance-of-probabilities-decision made by a man he’s never met.
The legal consultancy Prima Facie was founded on a totally different principle – seek to avoid the problem rather than litigate it.