U3AOS2Topic 2: Factors to consider prior to initiating a civil case

Factors to consider before initiating a civil claim:

1. Costs.
2. Limitation of actions
3. Enforcement issues.

Costs:

1. The process of civil litigation is very costly and a party involved in a civil dispute can incur large costs in resolving their dispute.
2. Involve fees for legal representation (for barristers or solicitors), disbursements, court fees, fees for appealing to a higher court and adverse cost orders.
3. A person, prior to initiating a civil claim, must consider whether they have ample financial resources to be able to afford all the costs associated with a civil dispute.

Disbursements:

1. Are out-of-pocket expenses/fees that a party may incur as part of a legal case. These include fees for expert witnesses (witnesses that give their professional/expert opinion regarding a subject matter), court fees (filing fees, hearing fees and fees for a jury when a party requests one).

Note:

1. According to the County Court of Victoria's website, the fee for a jury for the first day is 1,653.20 AUD, and then becomes 305.30 AUD (per day) for the second, third, fourth, fifth and sixth day. https://www.countycourt.vic.gov.au/forms-and-fees/fees-and-costs-civil-proceedings for more information.

Adverse Cost Orders:

1. In the situation that a plaintiff is unsuccessful in the claim they have initiated against the defendant, they may be required to pay for both their own legal costs, as well as some of the defendant's costs.
2. This is an important thing to consider as the potential for this to occur may be sufficient in deterring someone from initiating a civil claim.

Fees for legal representation:

1. Indulging in the use of a solicitor and barrister is very costly, particularly in complex and lengthy civil cases. The use of legal representation is absolutely vital to the success of a civil claim.

Note:

1. It is not expected of you to know what adverse cost orders or disbursement fees are. Though I'd recommend having an understanding of them as they are very good examples to illustrate your understanding of costs as a factor to consider before initiating a civil claim.

Limitations of actions:

1. Refers to a restriction on the time limit in which a plaintiff must commence a civil action in court, after which the plaintiff is unable to bring an action relating to the civil wrong against the defendant.
2. The length/period of time in which a plaintiff must commence a civil action in court (after which they can't in relation to the civil wrong against the defendant) is known as the limitation period. The limitations of actions is not the same thing as the limitation period.
3. The limitation period for different claims vary, e.g. for defamation it is one year but for negligence, it is six years.
4. Is an important factor to consider because for most types of claim, the plaintiff has to commence civil action within a certain time frame and once that time period has passed, they may be prevented from seeking a remedy (the limitation period may be extended in some situations).

Enforcement issues:

1. Relate to whether the defendant is able to follow through with the outcome of the case and provide the remedy that the plaintiff has sought after (for which the defendant is legally obligated to follow through with).
2. Is an important factor to consider before initiating a claim as a person needs to consider the probability of obtaining the remedy (damages and/or injunctions) enforced by the court. For instance, if a person is seeking damages, they should consider whether the defendant has the financial capacity to provide the compensation that the plaintiff has sought after (in the instance that the plaintiff is successful in their claim).
3. Involves issues that the plaintiff may consider: if the defendant is bankrupt or unemployed, if the defendant (if they are a company) has the sufficient assets to pay damages to a successful plaintiff, if the defendant is in prison or in another country (it may prove difficult to enforce them to pay as they are under a different set of laws and regulations) and if the defendant is anonymous (they cannot be identified or are unknown to anyone).

Note:

1. In your responses, make sure to emphasise why these factors are ACTUALLY important for a person to consider. Talk about their implications and potential consequences that may result in a person not considering them in order to showcase your understanding of this topic.