Our firm is frequently approached by clients seeking redress for various wrongs. However, we always advise our clients to think about the following key factors before making a decision to commence legal proceedings.
1. Objectively – do you have a good case? Not every case is actionable and not every perceived wrong warrants a civil claim. A good case consists of two things: (a) there is a legal basis to support your claim; and (b) you have sufficient evidence. The second requirement is equally important as the first but is unfortunately often overlooked: if you don’t have evidence to prove your version of the facts, you are unlikely to be successful in your claim. Generally speaking, the person who commences the claim has the burden of proof. Clients are naturally emotionally invested in their cases and cannot evaluate the merits of their cases objectively. As lawyers, our role is to therefore point out the strengths and weaknesses of our client’s case so that they are able to make an informed decision. A caveat: there is no such thing as a 100% “sure win” case so you will always need to make your own risk assessment before deciding to sue. Also – don’t ask your lawyer to tell you “the percentage of winning the case” since the outcome of a civil claim depends on many variables which cannot be predicted upfront. Any number given to you would be arbitrary at best. However, you can, and should, ask your lawyer to set out the strengths and weaknesses of your case so you can make an informed decision.
2. What are the costs involved? The costs involved in commencing legal proceedings aren’t just “lawyer’s fees“. Clients also have to think about the ancillary disbursements which could also be significant depending on the circumstances. For example, some proceedings may require a notice to be advertised or gazetted. These costs could be considered significant to individual claimants. Court proceedings are also unpredictable, and if interlocutory applications are filed, legal fees will increase accordingly due to the increased scope of work. Prudent clients will always provide for a “buffer” to accommodate any increase in fees due to unanticipated change in circumstances. Aside from the monetary costs, clients must also be prepared to invest their time to meet with their lawyers, review documents, and attend court hearings. Clients should also be aware that legal fees are rarely awarded on a full indemnity basis, so even successful litigants may have to absorb some of the costs of litigation.
3. Your matter may not end at a judgment. Some clients are also under the mistaken impression that obtaining a judgment from the Court will bring an end to all matters in dispute. This is a misconception as there is always a right to appeal. Even if you are successful, you may have to incur further costs and time if the opposing party decides to appeal against the decision. Further, a particularly recalcitrant defendant may even ignore, or refuse to comply with a court judgment, regardless of the consequences. In such a situation, you would have to commence execution and enforcement proceedings to force compliance with the judgment, which will cost time and money.
4. Will a court judgment give you what you want? Getting a court judgment may not necessarily get you what you want. For example, if you are suing to recover a debt owed, a court judgment may not help you get your money back if the debtor is genuinely insolvent or facing financial difficulties. Sometimes, you may want to consider alternative methods to legal proceedings such as negotiating a reasonable installment payment or taking some form of security over the debt. The option of commencing a lawsuit is there, but in certain circumstances, a less contentious approach may bear better fruit.
5. Are you prepared to tell the whole truth? There are always two sides to the story. Clients must always be prepared to tell the whole truth, not just to their lawyers, but to the Court. Withholding information from your lawyers will do you more disservice than good, and will damage your credibility. As your relationship with your lawyer must be based on mutual trust and respect, your lawyer will be unable to perform their duties to the best of their abilities if they do not get the full picture from you. If there are certain things in your case which you would rather not become public knowledge, you may want to think twice before initiating a court action.