Litigation… it’s a word we’ve all heard many times before. But what does it really mean? And where does it fit amongst all the legal terms? We sat down with Greenhalgh Pickard’s Litigation lawyer, to chat all things litigation.
What is litigation?
Simply put, litigation begins when someone decides they want to enforce or defend their legal rights; it is the beginning of a legal dispute between two or more parties usually seeking monetary damages, compensation or performance of some legal right, as opposed to criminal punishment.
So are you known as a lawyer or a litigator?
I guess you could say both. Technically speaking, lawyers who practice in civil litigation are known as litigators. We represent clients in all jurisdictions including at federal, state and local court levels as well as in the tribunals, arbitrations and at mediations.
How does civil litigation work?
Litigation usually starts once a claim is made between two or more parties. This might be people, companies or even governments. The claim might be a demand to pay some money or rectify some form of an agreement (usually contracts).
When the demand goes unsatisfied, generally this leads to litigating the matter in the court or small claims tribunal. So in a sense, you could say litigation is all about finding a fair resolution to a legal problem/dispute.
What happens when a claim goes to court?
Generally, it starts when one party files either a claim or an application, and these are not the same.
- A claim is filed when the facts of the case need to be established BEFORE the question of law is discussed.
- An application is filed when there is ONLY a question of law that needs to be determined.
Who is party to civil litigation?
Only legal entities can be a party to a civil litigation proceeding. So for instance, a person or a company are legal entities, but trusts are not considered to be legal entities.
What does jurisdiction have to do with litigation?
Jurisdiction means the official power to make legal decisions and judgements. It’s an important decision to get right, and can be a complex process.
Different courts or tribunals have different jurisdictions and filing proceedings in a wrong jurisdiction can result in litigation proceedings being suspended or delayed, additional costs and other complications.
Say you’re filing a claim – what’s the process?
The first stage of the court process is for the party starting the claim, known as the ‘plaintiff’ to file a Claim and/or a Statement of Claim to a court. Once that is filed, the plaintiff must serve it on the other party who is known as the ‘defendant’.
And if the claim is against you? How should you respond?
Once the defendant has been served a Claim, they generally have 28 days to respond – but this can vary between jurisdictions. Following the service of the Claim, the defendant can:
• Dispute it;
• Accept it;
• Dispute some but accept also accept others parts, or
• Claim a set-off or counterclaim
Once filed, the defence is served on the plaintiff.
Can the defendant ignore the Claim?
Yes they can, but it means they won’t get to have their say and more likely a judgment (by default) will be made against the defendant.
This means a judgment is given without the need for a hearing. The plaintiff can also claim their legal costs and interest from the defendant. If a defendant disputes a claim they should not ignore it and should file a defence within the time frame provided.
Once the defendant responds, can the Claim now proceed to court?
Depending on the complexity of the case, there are extra steps involved before the Claim proceeds to court. These might include:
• Requesting further details of facts from the other party;
• Disclosing relevant documents and evidence;
• Engaging expert witnesses;
• Asking questions before a trial (also known as ‘interrogatories’);
Once all required steps are completed one of the parties will make a request for the Court to set the matter for a hearing. The matter will only be heard if the Court is satisfied both sides have completed all the required steps and adequately prepared their evidence for presentation to the Court.
Why engage in mediation?
During mediation, parties are offered the time to explore the viewpoint of all involved. This ensures an outcome is reached that works for everyone. Each party is provided the opportunity to understand the other party’s point of view.
The mediation process helps reduce stress and ongoing expenses that might be associated with lengthy, legal proceedings.
Mediation experts are impartial. This mean, they are unable to offer specific advice.
Mediation outcomes or results are up to the decision of the involved parties. Again, this adds to the benefit of the parties controlling the outcome.
Additionally, mediations are conducted on a without prejudice basis. Nothing you share in mediation can be used against you in court or shared with a third party. Mediators lead the parties through a structured process and ensure the discussion moves smoothly and fairly.
When a result is achieved through mediation, we find there is rarely need for further legal action. These fair, equitable proceedings ensure all decisions are made by the participants themselves and not by a third party. This leads to the best chance of an ideal outcome.
If an agreement is reached, this can be formalised either verbally or in writing. You’ll also have the opportunity to change proceedings, removing what doesn’t work and implement steps towards a just agreement and a fair outcome.
Steps involved in booking mediation
- Ensuring both parties agree to a mediator and the subsequent costs involved.
- The mediator will interview each party individually.
- If interviews are successful, mediation proceeds.
- Initial drafting of settlement agreements to again ensure an efficient process.
Book experienced litigation lawyers today
Dealing with legal disputes and litigation can be extremely stressful. However, having the right litigation lawyer with experience
by your side can ease the burden and simplify the process involved to achieve a favourable outcome.
If you think that you have a matter requiring litigation, our experienced team of litigation lawyers, John Greenhalgh and Eloise Turnbull can assist you with navigating dispute resolution and general litigation.
We’re on hand to help you with all your litigation or dispute resolution needs and will work with you and other involved parties to ensure a fair and reasonable outcome. Call our litigation team today on (07) 5444 1022.
Settling disputes
Ensuring an efficient and cost-effective method
Limiting legal fees and court costs
Providing you with more control over the resolution
Directly involving you in negotiations
Greenhalgh Pickard’s Litigation Lawyers
