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Managing the Litigation Risk

Managing the Litigation Risk. Ian MacLean MBA Solicitor / Master Mariner. Introduction. The technical operator’s perspective Identification and management of risk Disclosure Documents created post incident Post incident management Preparing to combat litigation risk. Disclosure.

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Managing the Litigation Risk

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  1. Managing the Litigation Risk Ian MacLean MBA Solicitor / Master Mariner

  2. Introduction • The technical operator’s perspective • Identification and management of risk • Disclosure • Documents created post incident • Post incident management • Preparing to combat litigation risk

  3. 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

  4. Disclosure The obligation to disclose is subject to: • Proportionality • Reasonableness • Relevance • Privilege

  5. Disclosure Considerations • Duty is continuous • Previous incidents • SMS Umbrella vessels

  6. Documents created post incident • The Protest • The Statement of Facts • Communications with owner/client • Superintendents • ISM mandated documents • Personnel records

  7. Documents created post incident (cont) • Charterers, (OCIMF/SIRE) • Repair tenders • Lawyer’s reports / lawyer drafted witness statements • Experts & Surveyors • Communications with opponents • The approving judge test

  8. Preparing a Statement of Facts • Simple, short sentences • 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

  9. Post Incident Risk Overview • Jurisdiction and security • Control flow of information • Identify and preserve evidence • The legal adviser as part of the emergency response • Early expert involvement

  10. 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

  11. 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 • Continue recording

  12. 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

  13. 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 • The Ince e-letter

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