Winning the battle and losing the war

By | 5th May 2010

According to research carried out by me wholly unscientifically, I discovered that “to win the battle and lose the war” appears in a treatise entitled “The Art of War” written by military strategist Sun-Tzu in the 6th century BC.

Sun-Tzu may not have been a real figure but his existence is given credibility by the fact that others have repeatedly quoted from his treatise from the period of his supposed existence to the 19th and 20th centuries.

He was reputedly a general in the armies of King He Lu, the King of the Wu province of China and there is one legend about Sun Tzu which amused me. You can find the story in Wikipedia but, to whet your appetite, it concerns the king testing Sun-Tzu’s skills as a general by commanding him to train a harem of 180 concubines and turn them into soldiers. I will leave you to read it and enjoy, as they say!

Winning the battle but losing the war is a particularly depressing phenomenon, especially if you are the one who came out on top in the beginning only to succumb at the end.

That is exactly how I imagine Digicel will be feeling just now as the company contemplates the devastating end of their epic struggle against Cable & Wireless (CW).

Alert readers of this blog and those interested in the area of e-discovery will recall the case of Digicel, decided by Mr Justice Morgan in 2008. At the time. It stood out as a solitary light house warning of the dangerous shoals lurking in the depths below ordinary disclosure and sure trouble, if not expense, for those who failed to discharge their disclosure obligations properly or at all. Digicel had successfully applied for an order against CW for further documents despite the fact that a multi million pound exercise had already been undertaken by CW.

The Lawyer of 5th May carries an article headed “Slaughter and May’s scorched earth tactics pay off” which reports that at the end of last month the High Court ordered Digicel the claimants to pay indemnity costs to CW.

Having defeated the claimant on all but one minor contractual issue for which they were awarded nominal damages of £2 (yes two pounds!), The Lawyer reports that Slaughter and May went for the jugular and asked for indemnity costs.

They won!

In finding that the costs of the action had not been increased despite the fact that Digicel had failed to comply with pre action protocols about writing a letter before action and finding that they had not complied with practice directions, the judge accepted that Digicel had massively overclaimed and “That fact, and the consequential matters to which it gave rise, significantly widened the scope of the dispute.”

The costs have been estimated at £15.5 million. Did Digicel win the battle only to lose the war?

The award of indemnity costs certainly dwarfs the costs of the further disclosure exercise on which the Judge ruled in 2008 which resulted in CW having to add to the £2 million disclosure exercise undertaken earlier.

Sun Tzu would have agreed that the most important matter in litigation, as in war, is to focus on the objective and not let yourself be side tracked into battles which ultimately have little bearing on the outcome of the war.