Legal Unit 3 AOS2- Factors to consider before initiating a civil claim Flashcards
Factors to consider
- Limitation of actions
- Costs
- Enforceability
Limitation of actions
The restriction placed on the time within which a civil action can be commenced e.g.
- LP for breach of contract is 6 years from when breach occurred
- LP for defamation is 1 year from publication
Limitation periods (LP)
- If plaintiff brings claim outside limitation period they are time-barred from bringing claim at all UNLESS they apply for extension
- Extensions are given when the court considers it to be just & reasonable to do so
Costs
Parties are generally responsible for paying their own costs in civil case which is commonly legal rep e.g.
- Solicitors per hour
- Barristers per day
Cost disbursements
- Court fees
- Mediation fees
- Expert witness fees
Adverse cost orders
If plaintiff is unsuccessful in a claim then they are generally also ordered by court to pay part of the defendants legal costs
Points plaintiff should consider before initiating civil claim with costs
- What is the chance of winning the case?
- How much will my costs be?
- Can the defendant even afford to pay if I’m successful?
Enforceability involves considering 2 vital questions
- Is defendant able to comply with any order or settlement made?
- Is there any reason to suspect they will refuse to comply?
Settlement vs Order
- Settlement is an agreement between 2 parties
- Order is decision made by body to outline specific actions someone must take
Enforcement action
If a defendant doesn’t comply with settlement/order a successful plaintiff can take enforcement action through a court
- Adds to time & stress of civil action
- E.g. enforcement of civil debt through a warrant to seize property
Points about defendant plaintiff needs to consider with enforceability
- Are they bankrupt or at risk of declaring bankruptcy?
- Do they have access to any saving or assets?
- Are they in jail?
- Are they overseas or difficult to contact?
Enforceability issues show what is important for the plaintiff?
Why it is so important for a plaintiff to choose the best possible defendant if they have multiple options
- E.g. if an individual is negligent in the course of their employment, the plaintiff could sue their employer (e.g., a company) under the principle of vicarious liability
