Frequently asked questions regarding litigation
Q: How does the litigation process start?
A: The litigation process starts with a consultation with an attorney to determine the merits of the client’s case. If the merits warrant it, either a letter of demand will be sent to the Defendant or summons will be issued and served on the Defendant, depending on the circumstances.
Q: How soon must summons be issued?
A: Most claims prescribe within three years from the date that the cause of action arose. Service of summons on the Defendant will however, interrupt prescription. If summons is issued after the three year period the Defendant may raise a special plea of prescription.
Q: Where must summons be issued?
A: When deciding in which court to issue summons, usually the residential or work address of the Defendant will be the determining factor. The value of the claim must also be taken into consideration, to determine if action will be brought in the Magistrates Court or the High Court.
Q: How long does the litigation process take?
A: By its very nature, court procedures take a long time to finalise and the outcome is never guaranteed. We however, aim to use creative methods to settle disputes and to prevent lengthy legal battles.
Q: What about the costs involved?
A: Generally, the successful litigant is entitled to recover his legal fees from the unsuccessful litigant. Unless otherwise stipulated in the Court Order, such costs will be on the Party and Party scale. Party and Party Costs are those costs which were necessarily incurred in the course of prosecuting or defending a claim. They refer only to the fees and disbursements reasonably incurred by the party or party’s Attorney, and only in respect of the matter at hand.
Q: What are the alternatives to litigation?
A: There are a number of alternatives to litigation, which usually save time and expenses.
Settlement: At the outset of any litigation proceedings, it is wise to review the potential for an out-of-court settlement, which is often a cost-effective alternative to trial. In fact, most matters settle before reaching the trial stage. Settlement can be discussed and negotiated by any party at any time during the litigation proceedings.
Mediation: Whilst the parties may be able to negotiate and settle a matter without the assistance from a third party, it is not uncommon to involve a mediator to assist with Alternatives to litigation usually save time and expense. The mediator however, has no authority to decide which party is successful.
Arbitration: The parties may select a neutral third party, called an arbitrator, to resolve their dispute. In arbitration proceedings, the parties present evidence and argue the case before the arbitrator, who then decides which party is successful.