Factors to consider when initiating a civil claim
Negotiations options are informal discussions between two or more parties in disputes, aiming to come to an agreement about how to resolve the dispute
costs expenses incurred by a party involved in a civil dispute
The scope of liability is the consideration of who is the possible defendant and to what extent the defendant is liable
Enforcement issues are the issues that arise when a dispute has been resolved and a party refuses to compliy with their end of the settlement
Limitation of actions are the restriction on the bringing of a civil claim after the allowed time
Possible defendants (the person who is alleged to have infringed the plaintiff right or who has directly caused harm to the plaintiff)
Benefits of Negotiations
the costs, time and the stress involved in commencing a formal civil action may be avoided
the parties have control over the outcome, as opposed to it being decided for them by a third party.
the parties may be more prepared to accept an outcome that they have helped come to, as opposed to a decision that has been imposed formally by a court or another dispute resolution body such as a tribunal.
When Negotiations may not be an option
When one or both of the parties don’t want to resolves the dispute and are not interested in negotiating
When previous attempts to negotiate have failed
When violence is involved (threats or harm) and there is distrust of fear among parties
When the dispute is one-off and not a perpetuating dispute
When it is unlikely the dispute will result in and outcome
When there is an urgency to have a resolution
When there is an imbalance of power between the parties (not at equal footing)
Fees for legal representation
Courts costs and other disbursements (fees paid to expert witnesses)
Costs to the party that wins the claim (adverse costs orders)
Fees for legal representation (solicitor and/or barrister)
Party of paying for a high level of experience and training (at an hourly rate)
issuing a claim in court (or tribunal) will incur a number of disbursements (out of pocket’ expenses) such as the cost of the courts, mediation and expert witnesses
Adverse costs orders are costs a party in an order to pay by the court to the plaintiff to cover some of their legal expenses
Reasons why a limitation is imposed
The defendant doesn't have to face a claim after a period of time
Evidence is not lost
Disputes can be resolved as quickly as possible, promoting social cohesion Limitation of Actions Act 1958 (Vic) is the main statute that imposes limitations of civil actions
Contact - the defendant is the other contactor
Negligence - the defendant is the person(s) who breached the duty of care
The extent of the defendant’s liability
Employers
Vicarious liability - means an employer may become liable for the actions of an employee
Insurers
Insurance policy - an arrangement by which an insurer agrees to provide compensation to the insured if the insured suffers some form of loss
Persons involved in wrongdoing (accessorial liability)
A person who is involved in the wrongdoing may also be sued if they
The plaintiff must establish the extent to which the defendant is liable
The defendant may argue they are only liable for a portion of the Plaintiffs loss or damage (contributory liability)
The defendant may also argue that another person was liable in efforts to reduce their own liability
the ways that a plaintiff can obtain a settlement
settling with the defendant before the claim goes to court or through a dispute tribunal
Obtaining a remedy from a dispute resolution body