As soon as litigation is contemplated, you are obliged to conduct a reasonable search for and preserve disclosable documents i.e., those which are supportive and / or prejudicial to your case. This obligation extends to documents you might be entitled to copies of from third parties.
For most businesses this will involve searching email inboxes and electronic files to collate evidence showing: -
the identity of the contracting parties,
the contractual terms and conditions - the scope of the work and fees
how the contract was breached
the losses suffered
attempts to minimise losses - even if ultimately unsuccessful
What makes good evidence?
Evidence that came into existence at the time of an event, or shortly thereafter, is generally considered a reliable indicator of what happened at that time, so this kind of evidence can be persuasive.
Evidence can consist of items such as: -
contractual documents and details of any variations
written inter party communications
diary / notebook entries
invoices, credit notes, delivery notes, purchase orders, statements of account
company accounts
bank statements
photographs or CCTV footage
telephone recordings
electronic information
meta data
If you are receiving poor performance of a contract, follow up conversations with your counterparty by email, and take photographs where appropriate.
Telephone recordings and CCTV recordings can be problematic if they were recorded covertly. Their admissibility can be contested on several grounds, and their attempted use can give rise to separate claims against you.
Where key events happen at meetings and the recollection of attendees is the only evidence available, it is best to commit this evidence to paper at the earliest opportunity.
When should I seek legal advice?
Ideally before deciding whether to terminate the contract, so your solicitor can guide your next move or assist you prepare correspondence, to try to resolve matters at an early stage, or, if this is not possible, generate an appropriate paper trial you can later rely on in court and any settlement negotiations.
Should you require advice in respect of a potential contractual dispute please contact our commercial litigation team by emailing anna.barnes@salehs.co.uk or carly.borne@salehs.co.uk or telephoning 0161 434 9991.