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Commencement of Civil Lawsuits

To initiate a civil lawsuit, a person or company consults an attorney to assess the viability of potential claims, such as breach of contract, negligence, or various torts. If the claim is not statute-barred, the attorney files a claim form and particulars of the claim, which are then served on the defendant. The defendant has 14 days to acknowledge service and 42 days to file a defense. Most claims are now referred to mandatory mediation, but a judge may dispense with mediation under certain conditions. At a case management conference, a judge oversees the disclosure of documents and scheduling of further proceedings or trial.

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119 views4 pages

Commencement of Civil Lawsuits

To initiate a civil lawsuit, a person or company consults an attorney to assess the viability of potential claims, such as breach of contract, negligence, or various torts. If the claim is not statute-barred, the attorney files a claim form and particulars of the claim, which are then served on the defendant. The defendant has 14 days to acknowledge service and 42 days to file a defense. Most claims are now referred to mandatory mediation, but a judge may dispense with mediation under certain conditions. At a case management conference, a judge oversees the disclosure of documents and scheduling of further proceedings or trial.

Uploaded by

Shanikea Ramsay
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOC, PDF, TXT or read online on Scribd
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CIVIL LAWSUITS HOW DO THEY BEGIN?

We often hear of persons being involved in lawsuits, whether they sue someone or are being sued, but how does the process begin? With regard to civil matters, a person or company may sue or be sued for any number of reasons. The most common reasons or causes of action include, but are not limited to, breach of contract, negligence, personal injury and any number of torts - including defamation, trespass to the person or to property and false imprisonment, to name a few. To initiate a claim, a person or company ought to contact an attorney-at-law and give the details of the circumstances of the possible claim. The attorney then makes an assessment of the matter to determine its viability against the other party. A vital part of that assessment includes consideration as to whether the cause of action is statute-barred. An action or claim becomes statute-barred when the prescribed period within which proceedings to enforce a right must be taken, has expired. Majority of claims are limited to 6 years, actions in fatal accidents are limited to 3 years and adverse possession claims concerning land are limited to 12 years. Where the claim is more than likely statute-barred the client
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ought to be advised that the intended Defendant is entitled to rely on this as a defence to the claim. The attorney should then explain the pros and cons of the case to the client. Depending on the clients instructions only then should the attorney proceed to file the Claim Form and Particulars of Claim setting out the details of the claim. Having done so, these documents are then served on the opposite party, the intended Defendant, within 12 months from the date it was filed. A Defendant then has 14 days from the date of being served with the documents (the date of service) to file an Acknowledgment of Service which informs the Court of whether the claim is being admitted (in part or in whole) or contested and whether the Defendant is being represented by an attorney. The Defendant then has 42 days from the date of service to file a Defence to the claim. However a Defendant may opt to file the Defence within the 14 days from the date of service without having to enter an Acknowledgment of Service. Failure to file an Acknowledgment of Service within 14 days or a Defence within 42 days can result in Judgment in Default being entered against a Defendant. This is a judgment in favour of a Claimant grounded on the procedural default of the
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Defendant, which in certain circumstances may be set aside on an application by the Defendant. Depending on the contents of the Defence, the Claimant may choose to file a Reply to dispute certain points in the Defence. If, however, there is no need to file a Reply, the Claimants attorney then notifies the Supreme Court Registrar that the pleadings (claim and defence) are closed and requests that a date for Case Management Conference be set. Following the September 2006 Amendments to the Civil Procedure Rules, 2002 governing Supreme Court matters, the majority of claims are now automatically referred to mediation. Mediation is a dispute-resolving process in which a neutral third-party facilitates and co-ordinates negotiations by the parties with a view to resolving or reducing the extent of the dispute. Mediation is managed by the Dispute Resolution Foundation. Depending on the circumstances of the case, an application may be made by either party to dispense with mediation and request that Case Management Conference be scheduled. However such an application must satisfy certain requirements. Where mediation is unsuccessful, the parties return to Case Management Conference. This is where the parties and their
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attorneys meet with a judge and certain orders are made for the case to proceed, including orders for disclosure and inspection of documents where each side is made aware of the information being relied on since we no longer have such an adversarial system of trial by ambush. If the judge is of the view that certain issues of the case can be dealt with or resolved at this stage, this may be done and any remaining matters are remitted to trial. This is part of the function of judges to actively manage cases. A date for trial will also be set at Case Management Conference. Note however that due to the current backlog of cases in the court and depending on the number of days needed for trial, one may not be able to obtain a trial date until 2009 at the earliest.

Teri-Ann A. Lawson Associate DunnCox Attorneys-at-Law


2007

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