Civil Litigation for dummies – Part2

Hearings/trials

At the hearing parties present evidence in support of their case to a magistrate or judge. Witnesses may be cross examined and each party then prepares submissions stating their case based on the evidence presented. Sometimes, not all witnesses are called, but they may provide written statements only, which are then used as evidence.

Costs awarded and offers of settlement

Costs are usually given to the party that wins. Most costs awarded are in accordance with relevant courts’ scales, which in effect may give the party about half of the real costs.

One way to get more costs is to make an early offer of settlement. This is because, if the offer has been rejected and the offeror gets the same or better result at the trial, the offeror can then ask the Court to give an order for the payment of all of its reasonable legal costs associated with the Court action. Naturally, timing of the offers is important and depends on circumstances.

Interim applications/motions

The parties may during the proceedings apply to the Court for specific orders. For example, the parties may seek clarification or resolution of procedural disputes between the parties.

Applications can also be used by either party to end the proceeding earlier. Thus, the plaintiff may apply for summary judgment, which gives the plaintiff an early judgment if the plaintiff can prove that the defendant’s defence is so weak that there is no need to go a trial, but the matter can be decided earlier in the plaintiff’s favour. Defendant can also request that the Court dismiss part or all of the plaintiff’s case.

Settling a claim

Parties can stop the Court proceedings by settling at any time. This approach is encouraged by courts. Thus, parties may be ordered to attend a settlement conference or mediation to try to resolve the dispute between the parties before proceeding further with the Court action.

Most lawyers seek commercially viable solutions in early stages of their clients’ disputes, in order to avoid exposing their clients to prolonged and often costly court actions without guarantee of an outcome. Consequently, most cases settle before reaching the final stage. This is because, the majority of lawyers are in a good position to advise their clients about the strength of their legal position before the trial.

Mediation

While mediation is usually a voluntary process, it may also be ordered by a court. During the process an independent mediator, assists the parties to resolve the dispute. These discussions are usually confidential and the parties may sign a written agreement to confirm their terms of settlement, if any.

Arbitration

Arbitration is a process in which the parties engage a neutral third party, called an arbitrator, to resolve their dispute. The arbitrator is usually a person who has an extensive legal background. During the process, the parties present their case to the arbitrator, who then decides which party wins. The process is less formal than a trial. The decision is usually final and the parties cannot appeal it. An advantage of this is that the procedure is relatively quick and cost effective.

Teamwork

A positive result in litigation is nearly always the product of teamwork between lawyers and their clients. If both parties are committed to the proceeding the chances of success are better. This is especially important in civil proceedings, which is often governed by strict timetables (for each step in the proceeding) imposed on the parties either by the relevant court or rules. If for example, a client does not provide the solicitor with timely response to the solicitor’s request for the client’s documents, this can prejudice the client’s position as the solicitor may not have enough time to prepare required documents to comply with the required timetable. Additionally, this may result in additional work and costs to clients. Therefore, being well organised and working together with solicitors may increase clients’ chances of success and reduce their legal expenses.

Conclusion

Whilst civil litigation proceedings usually follow a certain pattern or rules, there may be variables that may affect each step in the proceedings. These variables may also affect time and the costs of the proceedings. This may be due to new evidence or facts that a solicitor was not aware of at the time. Therefore, it is very important that when a legal advice is sought the solicitor is advised of all relevant facts and presented with all evidence as soon as possible

If you have any questions in relation to the above article or need our assistance in relation to your civil dispute, please do not hesitate to contact us. We shall be more than happy to assist you in any way we can.

Please contact our litigation department on (02) 6206 1300 in the ACT or (02) 6128 1200 in NSW.

p:  +61 2 6206 1300 | e:  Info@elringtons.com.au