Ja­son Nathu

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:

�2 Might the dis­pute be set­tled ear­ly? Will the oth­er side fight all the way, or is it like­ly that a set­tle­ment can be reached?

�2 If the claim suc­ceeds will the oth­er side be able to pay the com­pen­sa­tion?

�2 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