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Prospects of success

Prospects of success

By Gino Dal Pont


It is logical to assume that a matter will go to trial where each of the contesting parties believes that he or she has good (or at least reasonable) prospects of succeeding. The logic is fortified by the application of the costs indemnity rule. Few rational litigants, it could be surmised, would press a matter to adjudication in the face of a strong prospect of not only proving unsuccessful (with whatever financial and other consequences may stem from this), but also being liable for (most of) the opponent’s legal costs. Rational litigants, moreover, would take the advice of their legal representatives, who in an ideal world would, to the extent possible, accurately advise as to the chances of success (or failure).

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