How we manage litigation

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If not properly managed, litigation can be unnecessarily time-consuming and expensive. We are committed to conducting proceedings as efficiently as possible.

Preliminaries

Before commencing proceedings consider:

  • Have all other avenues for resolution been exhausted?
  • Does the respondent have the means to satisfy a judgment?
  • What are the prospects of success?
  • How much will it cost?

Alternative courses of action

At the very least, you should clearly articulate your claim to the respondent. Is there any point in convening an informal meeting to attempt to resolve the matter? It’s our inevitable practice to write to your opponent detailing the proposed course of action before issuing proceedings.

The respondent’s means

Unless you are content to see your opponent bankrupted or liquidated if necessary, there’s little point in incurring the cost of litigation unless you are reasonably sure that he has the means to satisfy any judgment that you might obtain. We are not a credit reporting agency, so this is largely a matter for you to determine. But here are some hints:

  • Is the respondent employed?
  • Is he involved in other litigation? Credit reporting agencies offer this information.
  • Does the respondent own real property in Australia? If so, is it mortgaged? We can conduct Landgate searches in this regard.
  • If the respondent is a company, is it trading? What is its paid-up capital? We can conduct ASIC searches.

Is there a risk that the respondent will attempt yo dispose of assets before judgment? We can arrange for Landgate to notify dealings on specified land.

Prospects of success

The outcome of most court cases turns largely on the facts, and to a lesser extent on the relevant legal principles. So before commencing proceedings it’s important to carefully analyse the strength of the case and the prospects of success. This can be a time-consuming exercise, but properly undertaken will save money and potential embarrassment in the long term.

Legal costs

We will offer fixed price initial consultations.

We charge for an Assessment on a timed basis. Depending on the matter, we will give you an indication of the approximate cost at your initial consultation. As a result of the Assessment, we will prepare a quote (for the work in stages) that you may subsequently require that you may subsequently require.

Most litigation (about 95% in the Supreme Court of WA) is resolved before trial. If your matter is settled, we will ultimately only charge you for the work that we actually undertake. We prefer to quote for our services where possible by stages, rather than by open-ended hourly rates. But in order to do so, we need to fully understand the relevant issues.

Generally speaking, we will require you to make payments into our trust account in advance as the matter progresses. If you cannot afford to pay for our services, you may be eligible for litigation funding.

If you are ultimately successfully, the courts will generally order your opponent to make a contribution to your legal costs according to court scales. The amount that you recover in costs may be less than what we charge you under our agreement.

If you lose your action, the court is likely to order you to pay your opponent’s costs, again calculated according to court scales.

Assessment

If you retain us to act for you, we will first asses your prospects of success to do so we will:

  • catalogue and review  relevant written material (contracts, correspondence, memoranda etc);
  • take from you a statement of your proposed evidence cross-referenced to the catalogued documents;
  • consider the applicable legal principles; and
  • deliver to you a written or verbal suggested strategy (or alternative strategies) based on what we learn and a written quote for the additional services that you will require.

The legal process

Please read The legal process for what’s entailed. Bear in mind that it’s impossible to anticipate how the respondent will respond to the litigation and the tactics that he may adopt to delay or deflect the process.

Keeping in touch

We automatically email you copies of all documents that we issue or receive that pertain yo your file. Provided that they do not conflict with our duties to the courts and other ethical obligations, we are bound by your instructions. We will speak with you regularly to keep you informed and review progress.

Settlement

Most matters are settled before trial, either at a court –convened mediation conference or through informal negotiation. It is open for you to communicate directly with the respondent (but not his lawyer)at any time. This can sometimes be productive, but we strongly recommend that you first discuss any proposed contact with us.

 

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