Those that have been involved in the process of suing another party will tell you it is an unpleasant experience, even if you win your case. Some question if there is a winner in litigation , other than the lawyers . The increasing cost of legal services and Court fees should make any would-be litigant properly consider all other options before embarking on what will almost certainly be a long and costly process. For those with no alternative but to litigate, whether it is a personal injury claim, a breach of contract or a defamation matter, you may find the process less frustrating if you are aware of what lies ahead!
Litigation can be straightforward, and at other times it can be influenced by so many variables that are impossible to canvass here. The starting point is to understand that litigation is an adversarial process, and as such it has the uncanny knack of turning friends and business associates in mortal enemies.
Typically, a litigation matter will follow a number of procedural steps, including:
- Compiling and filing a Claim and Statement of Claim if you are the Plaintiff (the one su ing) , and a Defence if you are the Defendant (the one being sued) – it should be noted that if you are ever served with a Claim you should obtain legal advice in a timely manner to avoid the adverse consequences that may follow;
- Service of the Claim or Defence on the other party;
- Making disclosure of documents;
- Obtaining evidence from other parties where necessary, for example through a ‘Notice of Non-Party Disclosure’;
- Preparing for trial (including a conference with your lawyer and barrister)
- Conducting a trial;
- Judgment; and
This process can take anywhere between 6 months to literally years to complete There may also be the need to engage experts as part of the process. For example, doctors and occupational therapists in a personal injury claim or perhaps building or engineering experts in a construction matter.
The proper starting point, before commencing litigation, is to ensure that you and your legal team understand the matter thoroughly, and that you (as the Plaintiff or Defendant) have provided a detailed statement and all relevant documents to your legal team. Gathering the facts and evidence is critical, and if that has not been done you should question why you are contemplating Court action. It often pays to get a second opinion on whether you have a good claim or not, and engaging a barrister early can help with that.
A quote from Mark Twain probably sums up litigation: ‘ There are two times in a man’s life when he should not speculate: when he can’t afford it, and when he can ’.
