Before issuing proceedings, it is important to remove emotion from the decision and carefully consider the personal and financial implications. Issuing proceedings not only results in further legal fees, but it also becomes difficult to stop what you have begun without there being some adverse costs consequences. Litigation can affect a person’s business interests, employment, public reputation and personal wellbeing. Therefore, it is essential to consider the risk factors involved such as the costs of the litigation and having to potentially pay for the other parties legal costs should the judge’s decision not go your way.
In this article we’ll be looking at what is involved in issuing proceedings in court. From the initial steps of filing a claim, disclosure of information and collection and exchange of evidence, through to the final judgment (and possible appeal), costs and the timeframes involved, understanding the intricacies of this process is crucial for anyone seeking legal resolution.
Timeframes
The timeframe for issuing proceedings varies depending on the complexity of the case and the specific court’s caseload. An experienced defence lawyer will attempt to delay proceedings, which will result in a costly dispute over issues you may have never wanted to deal with but, because the court rules allow it, the other side has introduced them to their advantage. Not only is the process costly, it can takes months or years to reach a final trial date. Parties should be prepared for potential delays and consider their willingness to commit the time required for the legal process.
Commencement of proceedings
Issuing court proceedings commences once a statement of claim is filed in the relevant Queensland court and served on the other party. The claim sets out the details of the dispute, the parties involved, and the relief sought. The other party will then have 28 days to file a defence. From here, both parties will be required to submit disclosure documents, collect and exchange evidence and be required to attend trial. Following this, final judgement will be made and possibly appeals will be filed. Litigation is inherently risky and uncertain because the result is simply not known until judgement is given. Even if we can provide an opinion on prospects, there is ultimately never any guarantee given the nature of the adversarial process.
Trial process
Case management: Once both parties have filed their initial documents, the court may hold case management conferences to streamline the process. These conferences can address various aspects, including narrowing the issues, setting deadlines, and exploring the possibility of settlement.
Discovery: This phase involves the exchange of documents and evidence relevant to the allegations made in the case. Both parties are required to disclose documents that both support their respective claims, but also the other side’s claims, excluding documents covered by legal professional privilege which protects the confidential relationship that exists between a lawyer and their client.
Pre-trial steps: In preparation for trial, parties may engage in pre-trial procedures such as exchanging witness statements and preparing expert reports. These steps help streamline the trial process by ensuring that all relevant information is available and disclosed.
Trial: The trial is the culmination of the proceedings, where each party presents their case before the court. Witnesses may be called to testify, and evidence is presented to support the claims and defences. Evidence may also be presented by way of affidavit – a sworn statement by someone not required to appear in court unless they are required for cross-examination. The trial process can be complex and may involve cross-examination and detailed legal arguments.
Types of judgments
Following the trial, the court will issue a judgment or reserve judgment until a later date. This judgment outlines the court’s decision on the matter, including which party is successful and the relief granted. The judgment may also include orders regarding costs and any other relevant matters. It’s important to note that the judgment may be subject to appeal, which can extend the legal process further.
Judgments can also be achieved without going to trial. Should the other side fail to file a defence, and providing the statement of claim is for a clearly calculated amount, the plaintiff’s lawyer can file for judgment by default to avoid the trial process and proceed to enforcement. Summary judgement can also be applied for, whereby the plaintiff argues the defendant has no real prospect of successfully defending all or part of the claim, and there is no need for trial of the claim.
Appeals: If a party disagrees with the judgment, they may have the right to appeal the decision to a higher court. The appellate process involves reviewing the legal aspects of the case rather than re-evaluating the evidence. Appeals can introduce additional time and costs to the proceedings.
Consult experienced legal professionals:The phrase ‘costs follow the event’ – meaning the successful plaintiff can expect to have their legal costs met – is not a straightforward concept sounding in a guaranteed amount. Ultimately, the awarding of costs is subject to the Court’s discretion and the simple but unavoidable fact of whether the defendant has the money to pay the plaintiff’s costs.
In general, standard costs are awarded, usually reflecting about 50-70 per cent of the total legal fees a plaintiff might incur in taking court action. Indemnity costs – being standard costs plus the balance of legal fees – are awarded only in more serious cases of bad faith, misconduct, or wilful disregard of the court process or the law. The court’s discretion will also take into account whether any formal offers were made to settle the matter before or during the trial process.
Consult experienced legal professionals
Issuing proceedings in a court is a structured process that demands careful planning, legal expertise, and an understanding of the potential costs and timeframes involved. Navigating the legal system can be complex and emotionally demanding, making professional legal advice essential. Legal professionals can guide individuals through the process, ensuring that all procedural requirements are met and all relevant evidence is presented effectively. Contact our team of experienced litigation lawyers at PD Law today for more information on the steps discussed in this article.
