Download Mitigating the Litigation Risk

Managing the
Litigation Risk
Ian MacLean MBA
Solicitor / Master Mariner
Introduction

The technical operator’s perspective

Identification and management of risk
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Disclosure

Documents created post incident

Post incident management

Preparing to combat litigation risk
Disclosure
A litigant must disclose the documents:

On which he relies

Which adversely affect his own case

Which adversely affect another’s case

Support another’s case
Disclosure
The obligation to disclose is subject to:

Proportionality

Reasonableness

Relevance

Privilege
Disclosure Considerations

Duty is continuous

Previous incidents

SMS Umbrella vessels
Documents created post incident
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The Protest
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The Statement of Facts
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Communications with owner/client

Superintendents
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ISM mandated documents

Personnel records
Documents created post incident (cont)

Charterers, (OCIMF/SIRE)
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Repair tenders
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Lawyer’s reports / lawyer drafted witness statements
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Experts & Surveyors
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Communications with opponents
– The approving judge test
Preparing a Statement of Facts

Simple, short sentences
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Do not:
– Embellish or Speculate
– Offer analysis
– Apportion blame
– Be defensive

Limit information, if possible, to existing time stamps

Chronological

Consider short numbered paragraphs

Approximation is acceptable
Post Incident Risk Overview

Jurisdiction and security
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Control flow of information
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Identify and preserve evidence

The legal adviser as part of the emergency response

Early expert involvement
The expert/surveyor

Duty to the court

Ensure privilege

Forensic robustness

Record the factual position post-incident

Reconstruct events up to incident
– Collect data for modelling

Consider causation/defences

Assess/monitor opponent’s repair costs

Time is of the essence
Post Incident Management

Preservation of evidence
- Download data
- Contemporaneous evidence
- Scraps of paper count too

Calibrate and log / recording errors

Limit document creation / document lock down
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Continue recording
Post Incident Preparation

Expand contingency training
- Collection of documents & data – including scraps
- Calibrate & log

Audit contingency training

Prepare for document lock down

Identify & educate the “Mitigation Chain”

Adopt team culture
- Emergency response team
- Post incident management / claims team
In Summary

Adopt risk management techniques
– Risk awareness
– Mitigation

Educate the mitigation chain

Prioritize collection/securing of evidence

Assess and manage impact of post-incident documents

Manage recording errors

Prepare now – not afterwards
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