Before you sue: Matters to consider

Many persons turn to the courts as a remedy where they feel aggrieved or wronged. Before making the decision to pursue litigation, there are several factors you should consider. The first step is to identify what type of action you expect from the proposed defendant. This may include an apology or explanation, an assurance or undertaking that the 'wrong' would not reoccur, or compensation.

A decision whether or not a case should be taken forward is a question of balancing the financial and other risks involved against the benefits.  Litigation can be unpredictable both as to outcome and costs. Even if you have complete confidence in your case, there is no such thing as a "sure thing" when it comes to litigation. Some of the factors you should consider are:
• Might the dispute be settled early? Will the other side fight all the way, or is it likely that a settlement can be reached?
• If the claim succeeds will the other side be able to pay the compensation?
• Will expensive expert evidence be needed?

The legal position may be complicated. You should consult an attorney-at-law as soon as possible for guidance with regards to the strengths and weaknesses of the proposed claim. 

Pre-action protocols require a “cards on the table approach”. Information and evidence must be exchanged early. You are expected to explore every avenue to resolve the case. This includes mediation and negotiation. Failure to do this may result in heavy penalties being imposed by the court. This therefore requires early investigation of the facts, analysis of the law, gathering documents and instructions of experts.

Generally you have 4 years to bring a civil claim/ action against a defendant. This is known as the limitation period. This period varies depending on the type of claim. The date that the time begins to run is established by taking the date of the loss that you suffered. Once this time has passed, the claim becomes barred by law. You should consider who your witnesses will be. Your attorney-at-law will need to interview them and prepare witness statements ideally while their recollection of the facts is still fresh.

A court case starts with one side in a dispute filing a claim in the Magistrates’ Court or the High Court. Details are then sent to the defendant. The defendant can admit liability, make an offer to settle or defend the claim. The court will give directions for the hearing including setting out a timetable. Each side will need to disclose relevant documents to each other before the hearing. Missing any deadlines may mean that you may lose the right to continue the claim.

You should be prepared to compromise both before and during any court case. The parties can settle either in or out of court, at any time before judgment. A good attorney-at-law will be able to provide a clear explanation of the legal position and an indication of the likely expense that you may incur.

This column is not legal advice. If you have a legal problem, you should consult a legal adviser. Co-ordinator: Roshan Ramcharitar