DP2 Factors to consider before initiating a civil claim Flashcards
Costs, limitation of actions and enforcement issues
What should a plaintiff consider before initiating a civil claim (general)?
No guarantee that it will be successful, legal fees are expensive (access), time-consuming and stressful, may lead to negative publicity
How should a plaintiff consider costs?
How much will it cost? Will the costs of initiating a claim be more than the amount of damages sought? Can I pay my own costs? Am I eligible for legal aid?
What are the 3 main costs in a civil trial?
Legal representation, disbursements, adverse costs order
What costs are there in legal representation?
Costs can be extremely high, depending on complexity or size of the case, where the case is being heard, or the experience of the legal practitioner
What is a dusbursement?
Out-of-pocket expenses or fees incurred as part of a legal case
E.g court fees, photocopying, costs of expert witnesses, costs for a jury.
What is an adverse costs order and what should a plaintiff consider??
Court order that losing party pays winning party’s costs
Consider if plaintiff can pay own costs and defence’s costs
How do costs impact whether plaintiff should initiate claim?
Are they wealthy and can they pay for legal representation? Are they able to pay for the defence’s costs if they lose the trial? Does the plaintiff care about money, or do they just want to show disapproval?
What is the limitation of actions?
Time period in which a civil action can be commenced
E.g 1 year for defamation, 3 years for personal injury, 6 years for tort law (negligence, etc)
Why is the limitation of actions posed?
So defendant soes not have to constantly worry that civil claim will be brought against them, so evidence is not lost or forgotten, and to promote social cohesion
What does a plaintiff have to consider with the limitation of actions?
Whether they are able to pursue case, or whether the limitation has expired.
Can request for extension (fairness, participation and access, engagement), however may not be granted
little point in initiating claim if unable to obtain a remedy
What are enforcement issues that a plaintiff should consider when deciding a remedy?
Refers to whether defendant can comply with remedy awarded by court
- if damages, consider if defendant can pay, and if wiling to pay
- consider financial situation of defendant (e.g bankrupt, young, elderly)
- If injunction, consider if in position to comply with terms
What can a plaintiff do if the defence does not comply with a remedy?
May initiate an enforcement proceeding. Forces defendant to comply with remedy
- may involve asking court to direct sheriff to seize defendant’s goods and sell them
When can enforcement issues be difficult?
If defendant is bankrupt, or has no assets, they may be unable to pay. If in jail, difficult to enforce. If defendant cannot be contacted (overseas, deceased, etc), will be difficult to enforce.
Consider if self-represented - unable to afford lawyer, may not be able to afford damages
