Factors when initiating a civil claim, including costs, limitation of actions and enforcement issues Flashcards
What are Costs
A party involved in a civil dispute may incur costs in resolving that dispute. The costs include fees for legal representation, disbursements (such as court fees, meditation fees and expert witness fees and possible costs to be paid to the other party if the plaintiff is not successful.
What is an example of a cost (lawyer fees)
The cost of legal representation includes the cost of engaging a solicitor and barrister. Depending on the case and which resolution body is being used a party will engage both a solicitor and a barrister.
How much the solicitor and barrister will be on depends on:
the complexity of the case and the time it will take to resolve
Which dispute body is being used (VCAT generally does not allow lawyers)
The size of the case- the number of witnesses, the extent of the evidence and the volume of documents involved
The expertise of the legal practitioners: lawyers and barristers with greater seniority expertise usually charge higher fees
Disbursements
Issuing a claim in court (or a tribunal) may result in a person having to pay a number of disbursements (out of pocket, expenses) including
What is a example of a disbursement (court fees)
Court fees (filing fees, hearing fees and the fee for a jury if a party requests a jury) or tribunal fees
What is a example of a disbursement (mediation fees)
The costs of a mediator and possibly the costs of the venue where mediation is held. Whether mediation fees are incurred will depend on on whether the mediation is privately organised or organised by the court of tribunal
What is a example of a disbursement (fees for experts)
Fees for experts are fees for witnesses who are called to give their expert opinion, such as medical experts called by the plaintiff to give evidence about the injuries they have suffered
What is a example of a disbursement (Costs with technology)
The costs involved in using technology to manage documents that are relevant to the dispute. In larger disputes, there may be millions of documents, and the parties may need to use technology to manage and sort through those documents, particularly for purposes of discovery
What are Limitation of actions?
Refers to the restriction placed on the time within a civil action be commenced. For most types of claims, the plaintiff will need to commence the proceedings within a certain period of time. Once that period has passed, the plaintiff may be ‘time barred’ (prevented from seeking remedy). Must be done in a timely manner. 1 YEAR DEFAMATION
What actually are factors when initiating a civil claim
Factors which only affect the plaintiff. Circumstances or issues that the plaintiff should consider. Includes enforcement issues, limitation of actions and Costs.
Enforcement issues
the ability or capacity of the plaintiff to pay the legal costs: A straw person is someone who has nothing like a homeless person.
Enforcement issues to do complying with remedy’s
defendant may not have money or assets to pay damage
Defendant may be overseas, in jail, or contactable
