by Kristine Hopkins, LLB(hons), LLM, Australian Legal Practitioner

Suing someone is not always sensible and simple cases can turn into complex defended litigation costing hundreds of thousands of dollars. At that point, the matter is no longer commercial.

Some lawyers (and clients!) are guilty of being trigger happy when it comes to issuing court proceedings against a wrongdoer.  It is actually easy to issue proceedings in a Court.  Today, Courts are making it easier with self represented litigants being offered special resources to issue proceedings.  It seems everyone is a litigator these days.

Thus, bad litigation advice has become very easy to come by.   Unfortunately, once a case reaches a certain point in a Court proceeding, it is a point of no return.  There is not much a lawyer can do to reverse things and all that can be done is keep fighting or back out any way you can.  Fighting on is expensive, and usually clients have no idea what the lawyers are fighting about but backing out can be more expensive, particularly if the litigation has multiple parties, issues and has become complex.  An opposing lawyer can smell desperation a mile away and will use it to his/her advantage.

Therefore, the benefits (and risks) of suing, like any other commercial decision, should be researched and documented and strategized.

If you have been advised to sue by a lawyer, at a minimum, and depending on the particular situation, you should ask the following questions:

1.  What is the cause of action?  Explain to me on what legal basis am I suing them – in plain English please.

2. What does the cause of action entitle us to?  (ie. what is the lawful remedy that you are seeking? Do I receive an order for payment of money? Damages? Specific Performance? Restitution?

3. How is the remedy formulated?  If damages, how are they calculated and does the Court determine how much I will receive or is it a sum certain?

4.  What evidence is needed to prove the facts to make out my cause of action?  Have you received all the evidence you need from me?  How is that evidence going to be given to the Court (ie. orally or by Affidavit) and when? Who are the likely witnesses involved.

5. Do I need to engage an expert witness to give evidence?  If so, how much will that cost?   Expert evidence is required to prove facts required to make out a cause of action typical in technical matters (ie. building, manufacturing, insolvency)  Experts are very expensive and are added to the cost of litigation..

6. How much is this litigation likely to cost – if we don’t win?  What is the worst case scenario?

7. How much is this likely to cost – if we win?  What is the best case scenario?

8. What are my prospects of winning in percentage terms?

9. Have you done this type of case before and what was your experience?  How much did that cost the client? Did they win?

10. How long is this case likely to take?

11. What are the uncertainties?  What are the matters out of my control?

12. Can I pull out ? What is the point of no return?

13. Can you please provide me with a written costs disclosure statement and costs agreement documenting the costs above?

Your lawyer should be able to give you an answer to these questions and if not, be very careful.  Evidence and expert evidence is particularly technical and can be the reason why a lot of cases will not succeed.

Once these questions have been answered for you, at least you have been warned prior to pressing the trigger and commencing Court proceedings.  I advise you get the answers in writing and obtain a second opinion from another lawyer if you are unsure or have any reason to believe that your lawyer may not be able to answer any of these questions.   If you are going to be spending hundreds of thousands of dollars in legal costs – you should be advised and warned by your lawyer before the court proceedings are commenced.

This is general in nature and is not legal advice.  Should you have any questions please phone Kristine Hopkins on 03 9607 8279 or email [email protected].