CLENS Flashcards
what does CLENS stand for?
- Costs
- Limitations of actions
- Enforcement Issues
- Negotiation Options
- Scope of Liability
why does someone thinking of initiating a civil claim need to consider very carefully before doing so?
because of the significant costs involved, as well as time, stress, and potential negative publicity.
what is the limitation of actions?
this refers to the restriction placed on the time within which a civil action can be commenced.
what would happen if the plaintiff tries to bring a claim outside of their time limit?
the defendant may be able to raise a defence that the plaintiff is ‘time-barred’ or ‘statute-barred’ from bringing the claim.
what is the main statute that imposes limitations on actions in Victoria?
the Limitations of Actions Act 1958 (Vic)
what are the different limitation periods?
breach of contract and non-personal injury torts - 6 years
defamation - 1 year
can the plaintiff extend the limitation period?
yes, if the court considers it to be just and reasonable.
what are the two questions the plaintiff needs to consider in the scope of liability?
- who are the possible defendants?
- what is the extent of the defendant’s liability?
what comes under ‘who are the possible defendants’?
- there is sometimes more than one person who has caused harm to the plaintiff. Eg. an employer, insurer, or person involved in the wrongdoing.
- it is important for the plaintiff to consider who has the ‘deepest pockets’.
what comes under ‘what is the extent of the defendant’s liability’?
- the plaintiff needs to consider whether the defendant is fully or only partly liable for the harm caused.
why are costs vital for the plaintiff to consider?
because parties are responsible for paying their own costs in a civil case.
what would the costs involved include?
legal representation and disbursements.
what costs are involved with legal representation?
the solicitor and barrister.
what costs are involved with disbursements?
filing fees, hearing fees, mediation fees, expert witness fees.
what happens if the plaintiff is unsuccessful in their claim? (costs)
they may be ordered to pay part of the defendant’s legal costs. this is known as an adverse costs order.
what are negotiation options?
this involves the plaintiff considering whether the dispute can be resolved outside of a court or tribunal, using negotiation with the defendant instead.
what are the possible negotiation options?
- informal discussions to identify the issues in dispute.
- arranging with a third party to help resolve the dispute.
what are the benefits of negotiating?
- avoids the costs, time, and stress associated with trial.
- parties have control over the outcome, rather than it being decided by a judge or VCAT member.
when might negotiating not be an option or the best option?
- one or both parties isn’t interested in/willing to participate.
- negotiation attempts have already failed.
- history of violence between parties.
- significant power imbalance between the parties, they are not on equal footing.
what are enforcement issues?
involves the plaintiff considering whether the defendant is able ti comply with any settlement or order made and if they actually will. (can they afford to pay damages?).
what is a settlement?
an agreement between the plaintiff and defendant outside of court.
what is an order?
obtaining an order for damages from a dispute resolution body such as a court or VCAT.
what happens if the defendant doesn’t comply?
the plaintiff will then have to take enforcement action through a court usually, which just adds to the cost and stress of the civil action.
what does the plaintiff need to consider regarding enforcement issues?
- is the defendant bankrupt or may declare bankruptcy?
- do they have savings/assets?
- are they in jail?
- is the defendant overseas or difficult to contact?
