Generally, civil litigation involves a dispute between two or more parties where remedies are sought other than criminal convictions. Civil litigation generally seeks remedies such as monetary damages, performance of contracts, variation of contracts or termination of contracts.
Civil litigation is a broad field and encompasses numerous areas including contract law, property law, business law, commercial law, debt recovery, employment law, planning, building and tenancy disputes, wills and estate and personal injury. Whilst civil litigation can prove an effective and necessary tool in resolving your dispute and providing a remedy, there are several important factors that you mustconsider prior to engaging in civil litigation.
1. Have you taken genuine steps to resolve the dispute?
It is important to consider what steps you have actually taken to resolve your dispute, whether they have been genuine and what other tools are available to you. Most disputes are resolved outside of the courts through alternative, non-litigious forms of dispute resolution and internally with organisations.
Have you attempted to escalate your dispute through their internal channels? You can escalate your claim to senior members of an organisation including management, executives or a board. By escalating a matter internally, your dispute can reach the correct person who has the discretion to negotiate and settle. You can also avoid incurring legal costs.
Most businesses, particularly financial and credit service providers, have internal dispute resolution and complaints areas. These areas have specific complaints processes and generally take complaints seriously. Given the emergence of digital media, negative reviews and complaints have the capacity to rapidly reach a large audience and can be damaging to reputations. Organisations now take complaints seriously given the rise of the consumer and social media platforms.
When negotiating in a civil dispute, you should keep correspondence in writing, keep records of the events and request any offers or settlements in writing, as you will benefit from this if the dispute is legally escalated.
You can also lodge disputes and concerns with external regulatory bodies such as the Ombudsman and Consumer Affairs Victoria. These bodies offer voluntary conciliation services and can be effective tools in resolving your issues. It is important to note that these services are voluntary and they can’t force participation.
Are you experiencing difficulties in dealing with a business, their staff members or their complaints area? Do you require assistance in developing a strategy to attend to your dispute? If so, contact our litigation and dispute resolution focused team at AMK Law today. We offer legal advice, strategies and advocacy on your behalf.
2. Have you considered costs?
Legislative changes have attempted to modernise the profession, increase efficiency and ultimately reduce costs. Despite these changes, litigation can prove a costly exercise. Litigation is an adversarial process and involves a substantial amount of legal work, correspondence and negotiation, which can add up rapidly.
The Court has the power to award cost orders, however these are discretionary and unpredictable. Generally, if you are successful in a proceeding, you may receive an Order to have your costs paid. However, it is important to note that winning your case does not necessarily mean that you will receive your full legal costs from the other side, as there is often a substantial difference between your actual legal costs and the costs you are awarded by a Court.
Due to the high cost of litigation, it is advisable to genuinely pursue other means of resolving your dispute and use litigation as a last resort. Contact AMK Law today to discuss legal costs and work towards a tailored resolution.
3. Relationships and motives?
Relationships are a vital factor when considering civil litigation. Civil and commercial disputes are often emotional and impact those involved substantially. In some circumstances, commencing legal action can be a reactive response to emotions.
Civil litigation can be adversarial, litigious and generally does not foster relationships. When providing instructions to commence legal action you must consider your relationship with the person or organisation. Is the other party a supplier that you wish to continue trading with? Is the other party a family member or friend? Do you wish to continue a working or personal relationship?
Due to the nature of proceedings, commencing litigation may not be appropriate if you wish to maintain a personal or working relationship with a party. Specific strategies can be employed to seek your claim and ensure that relationships are maintained with other parties.
You must consider your motives for commencing litigation. As discussed above civil and commercial disputes can be emotional and are important to those involved. You must ensure that you have made genuine attempts to resolve the dispute, litigation is a last resort and your dispute is genuine and not vexatious.
The Civil Procedure Act 2010 provides a list of mandatory considerations and duties for clients and lawyers. These are contained in sections 16 to 26 and are listed below:
- Paramount duty to the Court to further the administration of justice;
- To act honestly;
- To claim on a proper basis;
- Only to take steps to resolve the dispute;
- To cooperate;
- Not to engage in misleading or deceptive conduct;
- To use reasonable endeavors to resolve the dispute;
- To narrow the issues in dispute;
- To ensure costs are reasonable and proper;
- To minimize delay; and
- To disclose the existence of documents.
A failure to obey these considerations can result in costs being awarded against the client or solicitor.
AMK Law focusses primarily on Litigation and Dispute Resolution to achieve results for clients. You can make an appointment with Matthew Karakoulakis to discuss your legal issues, remedies and compensation where appropriate. Remember, your first consultation is free!
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Important disclaimer: The material contained in this publication is of a general nature only and it is not, nor is intended to be, legal advice. This publication is based on the law as it was prior to the date of your reading of it. If you wish to take any action based on the content of this publication, we recommend that you seek professional legal advice.
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Civil Litigation. Harvard Law School http://hls.harvard.edu/dept/opia/what-is-public-interest-law/public-interest-work-types/civil-litigation/ [Accessed 10 November 2016] Arthur, John. “Remedies for Breach of Contract for Sale of Land” [2 October 2008] Continuing Professional Development Seminars. Available at http://www.gordonandjackson.com.au/uploads/documents/seminar-papers/CPDS.S566_-_Remedies_for_Breach_of_Contract_-_Melbourne_-_John_Arthur_24.09.08.pdf Pages 3-29. Accredited Specialists. Law Institute of Victoria <https://www.liv.asn.au/specialists> [Accessed 10 November 2016] Disputes with financial services or credit providers. Australian Securities and Investment Commission. http://asic.gov.au/about-asic/contact-us/how-to-complain/disputes-with-financial-services-or-credit-providers/ [Accessed 10 November 2016] Conciliation Policy. Consumer Affairs Victoria https://www.consumer.vic.gov.au/about-us/who-we-are-and-what-we-do/our-role-scope-and-policies/conciliation-policy [Accessed 10 November 2016] Sourdin, Tania. “Resolving Disputes Without Courts: Measuring the Impact of Civil Pre-Action Obligations”  Australian Centre for Court and Justice Innovation. Pages 7-10. Types of Costs. Office of the Legal Services Commissioner. http://www.olsc.nsw.gov.au/Documents/Fact%20Sheet%203%20Types%20of%20costs%20July2015%20AC.pdf [Accessed 10 November 2016]. Et al. Managing Litigation Risk in Commercial Relationships. Financier Worldwide. https://www.financierworldwide.com/managing-litigation-risk-in-commercial-relationships/#.WCkicvp96Uk [Accessed 10 November 2-016] Et al. Civil Procedure Act 2010 (Vic) s 16-26.