An interesting and not often talked about aspect of litigation is the importance of strategy and tactics. From time to time, the opportunity will arise to take a step in litigation which is out of the ordinary but which, if followed in the appropriate way, can save clients considerable amounts of time and money.
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A case we recently finished underscores this point. Our client was an international company with a famous brand. The company was initially fighting a relatively simple trade mark application lodged by a competitor. This case was won by our client in the Trade Marks Office.
The matter was, however, escalated into a Federal Court Appeal by the other side. This was also judged in favour of our client, but left its mark in terms of significantly increased costs.
Still, that was not the end of it. The other side lodged an appeal to the Full Federal Court, further raising the stakes (and ultimately the costs borne by our client).
When appealing to the Full Federal Court, appellants must seek the court’s leave (permission) to appeal. These applications are almost invariably granted and the usual advice to clients is to not fight the leave to appeal application, but agree for it to be heard at the same time as the actual appeal. This approach usually saves time and costs and the appeal itself explains why the leave to appeal application should be granted.
However, our strategy in this case was to advise our client to fight the leave to appeal application at a separate hearing. Despite the fact that successfully defending a leave to appeal application is rare, this tactic gave our client the chance to focus the judge’s attention solely on the application for leave to appeal.
Our client accepted the advice and we fought the application. There was an expectation that we wouldn’t succeed and would have to fight the appeal itself in a few months. However, the outcome was that we won the leave to appeal application. The other side was thus refused the right to appeal to the Full Federal Court and the case finished on the spot. No further appeals were possible.
So, by adopting an unusual strategy we saved our client substantial amounts of money and executive time in preparing for the appeal to the Full Federal Court.
The lesson learnt and which I believe clients will appreciate is that there are times in litigation when taking the path less trodden and thinking strategically can have a very large payoff indeed.