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Factors to consider when initiating a civl claim (Negotation…
Factors to consider when initiating a civl claim
Negotation
inappropriate
One or both of the parties does not want to resolve the dispute
Significant power imbalance between the parties
possible negotiation options
The parties interacting directly with each other to try and resolve the dispute, with or without legal representation
A mediation with or without legal representation arranged themselves
Advantages
parties have control over the outcome
cost and time efficient
Limitation of action
restriction placed on the time within which a civil action can be commenced for efficiency purposes
E.g for defamation, the time period is 1 year
Scope of liability
who
are the possible defendants and to what extent are they
liable
possible defendants
Employers (vicarious liability = employee was acting in the course of employment )
Insurers (as insurance company will be making the payment in the end)
Persons involved in wrongdoing (accessorial liability = in any way a party to the wrongdoing)
extent of liability
defendant may argue that they are only liable for part of the plaintiff’s loss or damage
May argue that the plaintiff was in part to blame for the harm done
Enforcement Issues
plaintiff will settle with the defendant before decision is handed down or will obtain a remedy from a dispute resolution body
plaintiff needs to consider whether the defendant is able to pay (e.g defendant may be bankrupt)
plaintiff may have to issue enforcement proceedings to force a defendant to comply with a remedy (E.g. obtain warrant to seize the defendant’s goods and sell them)