What should you consider before you Sue?

A new Act – New laws were enacted in Victoria in 2010 called the ‘Civil Procedure Act’. Under this Act, people wishing to take legal action are first required to sign a Certificate known as an ‘Overarching Certificate’. The consequences of signing the Certificate must be explained to litigants by their Solicitor. It includes an obligation on you to be honest and truthful in any allegation you are making in your case, otherwise there can be consequences including a costs order against you.

Is there a Proper basis? – Lawyers must sign a Certificate known as a ‘Proper Basis Certificate’. This means your lawyer must certify to the Court that the case (or Defence) has a proper basis and is properly grounded in law. If it is found during or at the end of the case that it is not, both the client and the lawyer can be held personally liable for the costs of the case! These provisions are designed to stop frivolous or vexatious cases coming before the Courts and clogging up the Court lists. They should be taken very seriously as the consequences in running an unmeritorious case or defence can be quite disastrous in terms of legal costs. We recently defended a claim which was made against our client without a proper basis. The case went to a hearing and the Court ordered costs to our client for the entire proceeding, not only against the Plaintiff Company, but also its Director for his role in bringing the frivolous claim.

Getting a cost estimate -You should always discuss with your lawyer at the outset of any matter what the likely costs of the proceedings are to be including any expenses such as Barristers fees, Court filing fees, stamp duty and the like. Current legislation means that all lawyers must at the outset provide their clients with a costs disclosure including an estimate of their professional costs and the likely disbursements. You need to know what the consequences are in the event that your case is unsuccessful and whether or not a costs order is likely to be made against you.

Getting early advice -Taking advice from lawyers experienced in the kind of area that you wish to litigate is essential and may involve the retaining of Barristers and Accountants in larger matters in order to properly formulate your claim before the Court, particularly if you are claiming more than $100,000.00 which claims can only be heard in the County or Supreme Court, rather than in the local Magistrates’ Court.