The commercial needing to re-structure sometimes means that evidence which might be critical in determining liability is lost or misfiled or simply not obtained during the aftermath of a problem. Of course, the court hearing which finally allocates responsibility may take place years later.
Although the litigation process now makes full use of witness statements, which are exchanged before trial, memories of events become less accurate with time and those documents which are contemporaneous with the event assume greater importance. Ideally, full statements should be taken from all relevant witnesses as soon as possible after the event.
Employees also leave or become less co-operative, or even die. A signed witness statement not only crystallises their view of the position but can also be used in evidence if they are unavailable at trial. If they change their view whilst giving evidence at the trial, their old statement can be used to show that they had previously held a contrary view strongly enough to sign it.
It is also important to ensure that any investigator looks at all areas which could be relevant. A forensic scientist often focuses on immediate cause (“a smoking cigarette”) to the exclusion of other relevant matters (“was the perpetrator a known heavy smoker or arsonist?”), so that points of detail which appear insignificant to him are not considered.
These points often assume far greater importance as the litigation is pursued. Frankly, this problem usually occurs because the decision to subrogate is taken long after the event, by which time the forensic trail has been muddied or gone cold. An early decision is often the key factor in a successful recovery.
A small amount of legal input at this stage can also go a long way. All relevant documentation will have to be disclosed at the stage in the litigation known as “Discovery”.
A solicitor can not only determine the most appropriate potential targets for a subrogated action, but can also prepare the groundwork for later good case management, including an early and satisfactory resolution of the dispute. Advising upon the documentary base to evidence a claim against one or more parties can later prove to be critical.
By James Clapton