This article serves as a straightforward guide to what is involved in starting litigation and the processes you and your lawyer will need to go through, as well as some of the decisions that will need to be made.
How to prepare your case
Initially, you and your lawyer will want discuss your matter and its particulars in detail. This is traditionally done in person, but the LegalVision approach allows us to do this on the phone or over video conference. After you and your lawyer have had an interview, he or she will be in much better position to advise you on your matter.
At this point, your lawyer will consider two things in particular. These include:
- The Cause of Action, which refers to whether you actually have a case under existing law. In other words, based on the facts you have discussed with your lawyer, and the information that can be collected later, do you have claim, or a ‘Cause of Action’?
- The relevant jurisdiction – When starting litigation, your lawyer must determine which Court will hear and determine the matter. This is important to decide, as certain courts hear certain claims, and, if the matter is a civil claim, have their own monetary limits.
How to start proceedings
One thing to keep in mind when starting litigation is that each court has its own set of rules with different procedures for starting litigation. The procedure used sometimes depends on the type of proceeding, i.e. what kind of matter is being heard. The required document by the Courts for commencing proceedings and starting litigation is a statement of claim. The combination of the statement of claim, the ‘defence’ (your response to the statement of claim), and various other documents, such as the cross-claim, are known as the pleadings.
What is a Statement of Claim?
Out of all the different documents and forms of ‘originating process’ involved in starting litigation and commencing proceedings, a Statement of Claim is the most common. When the claimed amount is known, a statement of liquidated claim will be used. In these cases, the Court will not need to make additional enquiries and you will not need to submit further evidence as to the amount being claimed. In debt matters, for example, a statement of liquidated claim might be used, whereas matters involving claims for damages in a tortious claim (a personal injury matter) may require the submission of a regular Statement of Claim. This is because, to determine the amount of damages, if any, the Court needs to hear the evidence being submitted
Following the filing of the originating process, depending on the Court, the relevant Court rules will set a time for specific steps to be carried out by the defendant. In most cases and jurisdictions, the Court will award default judgment to the plaintiff if and when the defendant fails to answer the allegations (carrying out the prescribed steps). If you’re the defendant in a matter and you don’t know how to carry out these steps and respond to the allegations, consult a lawyer immediately.
Starting litigation and commencing proceedings is a big step and should only be done as a last resort after attempts to resolve the matter by alternative means have failed. For assistance with starting litigation and commencing proceedings against another party, contact LegalVision on 1300 544 755 and take advantage of an obligation-free consultation with one of our experienced client care team.