unit 3 aos 2 legal studies Flashcards
purpose of civil law
to restore plaintiff back to position before wrong doing
to right a wrong
burden of proof in civil law
party with the onus is the plaintiff, since they bring the case to court
burden of proof is reversed, and put onto defence if they make a counterclaim, or raise a defence
what is a counter claim
counter claim is a separate claim made by the defence in the same case, making them the plaintiff in the counterclaim
standard of proof civil law
strength needed is on the balance of probabilities, which means the plaintiff must prove that their version of events is most like to have occured then not
difference between standard of proof, criminal vs civil
-> civil has lower threshold and its more easier to prove then criminal (beyond reasonable doubt)
factors the plaintiff needs to consider before initiating a claim
- limitation of actions (time limit)
- costs
- enforcement issues
limitations of actions
-> restriction placed on the time within which a civil action can be commenced, existing for most types of civil claims
-> (this means) if plaintiff tries to bring a claim which is outside the time limit, they are ‘time/statute barred’ from bringing their claim
-> notwithstanding this (they can apply to court to extend the limitation period are court may do it if it considers it to be ‘just and reasonable’
-> (this is vital because) it means defendant dosnt have to face an action after significant amount of time
-> (notwithstanding this) they dont exist for child sexual offence cases
- two examples - 6 years for breach of contract and 1 year from publication for defamation
costs
-> vital for plaintiff to consider, since parties are generally responsible for playing their own costs in a civil case
-> (for instance) these costs can include legal advice and representation, as well as other disbursements such as court filing fees
-> notwithstanding this, some options for support are available with legal coats such as VLA and pro bono lawyers, though this is limited and mostly uncommon for civil cases
-> (this also impacts) a plaintiff if they aren’t successful in their case, they will not only have to pay for their own legal costs, but are generally also ordered by the court to pay part of the defendants legal costs under adverses costs order
-> (this increases the importance) of institutions and methods for resolving civil disputes outside the very expensive court system
enforcement issues
-> this refers considering two vital questions when deciding whether to initiate a civil claim against a particular defendant
-> (this includes) whether the defendant is able to comply with any settlement or order made, and whether there is any reason to suspect that they will refuse to pay
-> (this is beneficial to consider) because if they don’t comply with the settlement order, then the plaintiff will have to take enforcement action, through the court usually which just adds further stress, more time and costs of the civil action
-> (as such) other questions that are important to ask is whether they are bankrupt, have access to savings, whether they are in jail or even difficult to contact
-> (notwithstanding this), if the defendant being sued for example; for negligence in the course of their employment, the plaintiff could sue their employer under the principle of vicarious liability.
-> (this closely relates to enforcement issues because) it means they will definitely have the money to pay you and it will ruin their reputation if they don’t follow an order or settlement made
mediation
discussion between the two parties, where they develop options and consider alternatives to reach agreement
third party in mediation
-> third party is independent and called a mediator
- expertise in assisting parties to negotiate
- helps facilitate communication
- cannot suggest how to resolve dispute
parties role in mediation
to have discussion and try come to an agreement by negotiating and compromising
mediation process
cooperative process
they are conducted in private, where outcome is usually confidential
less formal and no strict rules of evidence and procedure
