Dealing with Aggressive Opponents: Why the Weaker Party Should Never Litigate Tit for Tat

In 1980, Robert Axelrod ran a tournament. He invited game theorists from around the world to submit strategies for an iterated prisoner's dilemma, played over 200 rounds against every other submission. The winner — by a margin that surprised nearly everyone, including its creator — was a four-line program submitted by Anatol Rapoport that never defected first, always retaliated immediately when defected against, and always forgave immediately after.

Employment practitioners will recognise the adversary the following analysis describes, even if they have not previously thought of it in these terms. The opponent who fires off tribunal applications that have not been invited. Who demands responses by return and then takes three weeks to reply. Who makes disclosure requests for evidence their client already holds, for reasons that become clearer when you look at the underlying merits of the claim. The instinct is to respond in kind. Axelrod's research strongly suggests that instinct, while entirely understandable, is usually strategically wrong.

The Game Theory Foundation

Axelrod's central finding in The Evolution of Cooperation (Basic Books, 1984) was that in repeated games — where the same players interact multiple times with knowledge of prior moves — cooperative strategies consistently outperform aggressive ones over the long run. Tit-for-Tat works because it is nice (never the first to defect), retaliatory (responds immediately to defection), forgiving (reverts to cooperation after a single retaliatory move), and clear (the strategy is legible to your opponent). Perhaps I might choose those words as my own epitaph.

Aggression works in one-shot games, where there is no future to care about. In repeated games, unchecked aggression tends to lock both players into mutual defection — costly for everyone, and catastrophic for the player with fewer resources.

Employment tribunal litigation is, almost by definition, a repeated game. Preliminary hearings, case management, disclosure, witness evidence, the hearing itself — the parties interact many times, before the same judge, over months or years. The relationship has a future. That future matters strategically, and it matters differently depending on who has the larger budget.

Why Tit-for-Tat Breaks Down in Asymmetric Litigation

Axelrod's analysis assumed rough equality of resource between players. Employment litigation is rarely equal. An institutional respondent represented by a large specialist firm has an effectively unlimited legal budget relative to most claimants. In asymmetric games, mirroring your opponent's aggression accelerates the attrition dynamic in their favour. Every aggressive letter you write requires research, drafting, and review — consuming the same proportion of your client's budget as your opponent's, which is to say far more in absolute terms.

The optimal strategy in asymmetric repeated games is not tit-for-tat. It is what William Ury, in The Power of a Positive No (Bantam, 2007), calls unconditional constructive firmness: never match the register, always respond at a higher professional level, keep responses short and precise. The game theory equivalent is a dominant strategy — one that outperforms alternatives regardless of what the opponent does. In asymmetric litigation, calm consistency is that dominant strategy.

A Strategic Map

Four scenarios, two variables: whether resources are roughly equal or heavily asymmetric, and whether the interaction is a one-shot transaction or a repeated game. Employment tribunal litigation (from a Claimant's perspective) almost always occupies the bottom-right quadrant — which is precisely why the conventional instinct to match aggression is wrong.

The Employment Judge Is the Real Audience

Here is the insight that changes the analysis: in tribunal proceedings, you are never really writing to your opponent. You are writing for the Employment Judge. Every letter filed with the tribunal is read. Patterns are noticed. The practitioner who responds to every aggressive interlocutory application with a measured, authoritative letter that is slightly shorter than the application it opposes is building a narrative. The practitioner who matches aggression with aggression is building a different one.

Employment judges are experienced enough to recognise the asymmetric-pressure playbook. They see it regularly, particularly in cases where an institutional respondent is represented by a large firm and the claimant is unrepresented. They are not neutral observers of the correspondence record. The aggressive solicitor is often writing for a different audience — an in-house HR team that wants to see fight, a client board that equates volume with value. The Employment Judge is neither of those audiences, and the difference tends to show.

The Running Costs Record

Rule 74 of the Employment Tribunals Procedure Rules 2024 provides the structural lever. The tribunal may make a costs order where a party (or their representative) has acted "vexatiously, abusively, disruptively or otherwise unreasonably." The threshold is not negligent — it is unreasonable. And as Mummery LJ confirmed in Yerrakalva v Barnsley MBC [2012] IRLR 78, the tribunal looks at the whole picture of conduct, not individual acts in isolation. A single premature application may not cross the threshold. A pattern of premature applications, documented cumulatively across the correspondence record, tells a different story to a judge who has watched the pattern unfold.

The mechanics are simple. Every time the aggressive opponent makes an application that is premature, misconceived, or proceeds on a demonstrably false premise, you note it. Not at length. A single, quiet line: "The Claimant notes that this is the [nth] such application made in advance of any directed hearing, and reserves all rights under Rule 74 accordingly."

Said once, it is a warning. Said consistently, it becomes evidence of a pattern. The costs record is assembled not in a single application but over time, one quiet reservation at a time.

The Merit-Anxiety Hypothesis

There is a further observation worth making, though it is forensic rather than doctrinal. Aggressive pre-hearing conduct — a pattern of strike-out applications, premature disclosure demands, and procedural pressure — often correlates with anxiety about the underlying merits. The respondent who is confident in its factual position tends to welcome the hearing. The respondent who is not tends to prefer that the hearing never takes place.

I concede that I cannot always distinguish merit-anxiety from routine institutional aggression. Sometimes the aggression is simply a firm's house style, or a client demanding visible activity. But where there is a demonstrable inconsistency between the respondent's litigation posture and the facts underpinning the substantive claim — where, for instance, the respondent simultaneously denies liability and refuses to engage with the very documents that its own conduct generated — that inconsistency is itself a signal worth reading. In such cases: treat the aggression as information — it is a signal, not merely noise to be managed.

Practical Takeaways

• Never match the register. Respond to aggression at a higher, calmer professional level. The Employment Judge is reading.
• Keep responses short. Comprehensive rebuttals do half of your opponent's litigation work and signal that the pressure is landing.
• Document every premature application. Reserve Rule 74 rights expressly, consistently, and without fanfare.
• Treat the pattern as evidence. The whole picture, per Yerrakalva, is what the tribunal eventually assesses. Make sure it tells a coherent story.

Axelrod's tournament proved that the most cooperative strategy won. It did not prove that the participants were nice.

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