When it comes to resolving a dispute, various factors can influence how we determine the best approach to take. Factors such as the strength of the case, the dynamics between you and the opposing party, your desired outcome, and time limitations, can often lead to the conclusion that seeking alternate dispute resolution as opposed to commencing litigation may be more prudent. Alternatively, if it is found that the likelihood of non-compliance with a resolution is high, pursuing formal court proceedings might prove more effective in obtaining an enforceable decision.
Nevertheless, if you have decided that you want to commence proceedings in a matter, there are a few things to consider:
1. Will it affect the likelihood of an ongoing relationship?
Generally, commencing court proceedings against someone can adversely affect both your personal and business relationship with them. Prior to taking any action, ask yourself: ‘Does this relationship hold any significant to me, personally or commercially?’. If your answer is ‘yes’, commencing court proceedings may not be the most suitable course of action.
2. Who pays for commencing proceedings?
Each party is responsible for payment of their own legal fees. Generally, the court mandates that the party found unsuccessful contributes partially to the legal expenses of the prevailing party. Yet, instances of the unsuccessful party being wholly responsible for all costs are infrequent. Furthermore, certain courts and tribunals may avoid issuing cost-related orders altogether.
3. Can the proceedings be withdrawn?
Usually, the party that initiates the proceedings retains the ability to discontinue or withdraw the proceedings. However, the party may also still have the chance to bring up the same issues in a new case later.
4. What are the time limitations?
Legal proceedings in courts or tribunals consistently follow strict deadlines. A ‘limitation period’ is the maximum time allowed between the cause of action arising and the start of related court proceedings. It acts as a legal barrier, barring claims made long after the cause of action occurs. Different types of disputes might have varying limitation periods, highlighting the necessity of compliance.
Navigating the rules of court can be tricky. Deciding whether to commence court proceedings or whether to embrace alternative dispute resolution to solve a legal dispute is a judgment best formulated with the advice of a lawyer.