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Ask before you threaten

If you want the other side to do something (e.g. disclose some documents to you), always see if they will do it voluntarily before you apply for a tribunal order requiring them to do it. The reason for this is that it gives you two bites at the cherry. Sometimes respondents will disclose documents on request that the tribunal wouldn’t order them to disclose – if you go straight to the tribunal to ask for an order, you miss the opportunity to benefit from this. One thing is certain: once the tribunal has refused you an order, they won’t say ‘Oh well, we’re feeling generous – have it anyway.’

Don’t skip the first stage just because time is short. If there isn’t time to give them a reasonable period to comply before you apply for an order, ask them to let you know by return whether they are willing to comply so that you can make your application promptly if they are not. If you don’t get an answer, you can always ring them up and ask them what they plan to do. If they say they haven’t decided yet, then you may have to say something to the effect ‘In that case I’ll have to ask the tribunal for an order now because time is short, but of course if you comply with my request meanwhile I will withdraw the application.’

This is a particular instance of the more general rule that – whatever you’re after – it’s better try charm first, and resort to aggression or compulsion, if appropriate, only after charm has failed. You can’t credibly backtrack from aggression to charm, but you can always escalate from charm to aggression if you have to.

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