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 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 The Protest The Statement of Facts Communications with owner/client Superintendents ISM mandated documents Personnel records

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

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

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

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 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 The Ince e-letter