Many persons turn to the courts as a remedy where they feel aggrieved or wronged. Before making the decision to pursue litigation, there are several factors that you should consider.

The first step is to identify what type of action that you expect from the proposed defendant. This may include an apology or explanation, an assurance or undertaking that the ‘wrong’ would not reoccur, or compensation.

A decision over whether or not a case should be taken forward is a question of balancing the financial and other risks involved against the benefits.  Litigation can be unpredictable both as to outcome and costs. Even if you have complete confidence in your case, there is no such thing as a “sure thing” when it comes to litigation.

Some of the factors that you should consider are:

  • Might the dispute be settled early?
  • Will the other side fight all the way, or is it likely that a settlement can be reached?
  • If the claim succeeds will the other side be able to pay the compensation?
  • Will expensive expert evidence be needed?

The legal position may be complicated. You should consult an attorney-at-law as soon as possible for guidance with regards to the strengths and weaknesses of the proposed claim.

Pre-action protocols require a “cards on the table approach”. Information and evidence must be exchanged early. You are therefore expected to explore every avenue to resolve the case. This includes mediation and negotiation. Failure to do this may result in heavy penalties being imposed by the court. This therefore requires early investigation of the facts, analysis of the law, work on documents and instructions of experts.

You usually have 4 years in which to bring a claim against a defendant. Once this time has elapsed, such an action becomes barred forever by statute. This is referred to as the “limitation period”. The date that the time begins to run is established by taking the date of the loss that you suffered.

You should consider who your witnesses will be. Your attorney-at-law will need to prepare witness statements for them, and ideally should do so while their recollection of the matters in issue is still fresh.

A court case starts with one side in a dispute issuing a claim in the Magistrates Court or the High Court. Details are then sent to the defendant. The defendant can admit liability, make an offer to settle, or defend the claim.

The court will issue directions saying what needs to be done to prepare for the hearing and setting out a timetable. Each side will need to disclose relevant documents to each other before the hearing. Missing any deadlines may mean that you may lose the right to continue the claim.

You should be prepared to compromise both before and during any court case. The parties can settle either in or out of court, at any time before judgment.

A good attorney-at-law will be able to provide a clear explanation of the legal position and an indication of the likely expense that you may incur.

The featured image used in this post is by Debangsu, used under an Attribution-NonCommercial-ShareAlike 2.0 Generic Creative Commons license. Visit Debangsu’s photostream on flickr.


About The Author Jason Nathu

Jason Nathu is an Attorney-at-Law and Tutor attached to the Legal Aid Clinic at the Hugh Wooding Law School.