Factors to Consider Before Initiating a Civil Claim Flashcards
1
Q
3 factors to consider
A
- Cost
- Limitations of actions
- Enforcement issues
2
Q
3 examples of cost considerations
A
- Legal representation:
- If the plaintiff wants to be represented they can initiate a contract with a solicitor or barrister
- The cost will depend on the length and complexity of the case
- Senior barristers can charge $600, and KCs can charge up to $1000/h
- Disbursements:
- Other expenses incurred as part of preparing for the case excluding legal representation
- Paid by the legal firm then invoiced to the plaintiff
- Couriers, writs, juries, expert witnesses
- Adverse court orders:
- When the court orders the losing party to pay the legal fees of the other
- Discourages frivolous cases
- Encourages out of court settlement
- Compensates the successful party
3
Q
Limitations of actions
A
- A restriction on the time limit in which a plaintiff must commence a civil action, after which the plaintiff cannot bring any action relating to that civil wrong
- Can apply for an extension if the loss was only just discovered, or they had a disability during the relevant period
4
Q
Legislation for limitations of actions
A
- Limitations of Actions Act 1958 (Vic)
5
Q
Why does the limitations of actions exist
A
- To encourage parties to bring their disputes to court in a timely manner
- Ensures witnesses can recall the incident from memory accurately
- To ensure the quality of evidence remains high
- To ensure finality for the defendant
6
Q
3x limitations of actions
A
- Negligence = 6 years
- Personal injury = 3 years
- Defamation = 1 year
7
Q
Enforcement issues
A
- A factor that involves the plaintiff considering that if they are successful in their claim, whether they can enforce it
- Might require sheriff’s notice
8
Q
Enforcement considerations
A
- Whether the defendant is bankrupt
- The defendant may have no assets to sell
- If the defendant is in prison or overseas
- If the defendant is unidentified/unknown
