Litigation
At BLV, we prioritize our clients' interests, simplifying the process, whether we're pursuing or defending a claim.At BLV we will protect and defend our clients’ interests and will make the process as simple and easier as possible regardless of whether we are bringing or defending the claim. The most important factor when finding a litigation attorney is trust. We ensure that our clients are comfortable with their attorneys and that their relationship is based on openness and transparency.
What is Litigation?
When a person begins a civil lawsuit, the person enters into a process called litigation. A lawsuit is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant’s actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment is in the plaintiff’s favour, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act.
How does the Litigation process start?
The litigation process starts with a consultation with an attorney to determine the merits of the case. If the merits warrant it, summons will be issued and served on the Defendant(s).
What is the difference between the motion proceedings and action proceedings?
The motion process is a shorter process due to the fact that the dispute is decided mainly on papers by affidavits submitted by both parties. In an action, summons must be issued when there is a possibility of a dispute of facts and it will be necessary to give verbal evidence.
How soon must summons be issued?
Generally most law suits prescribe within three years from the date that the cause of action arose and serving summons on the Defendant will interrupt prescription. However if summons are issued after the three year period the Defendant may raise a special plea of prescription. It is bad ethics to initiate action knowing that the debt has prescribed.
In what jurisdiction should summons be issues?
When deciding in what court to issue summons, usually the residential or work address of the Defendant will be the determining factor. The value of the claim must also be taken into consideration.
How long does the litigation process take?
Litigation is a timely process due to the fact that attorneys must first exchange the necessary pleadings and only after the last pleading was served, can either the Plaintiff or the Defendant’s attorney apply for a court date. The quickest way is to try settle out of court.
What happens at a trial?
At the trial, witnesses are called to testify and have to go through examination by the attorney or counsel who called him or her, must be cross-examined by the attorney or counsel for the Defendant / Plaintiff and if necessary be re-examined again by the attorney that called him or her. In a civil case, the onus of proof is a balance of probabilities whereas in a criminal case, the onus of proof is beyond reasonable doubt.
What about the costs?
There are many fees associated with litigation. There will be professional fees for your attorney, disbursements and Counsel fees. There may also be costs involved in getting expert advice, opinion or report, valuations or travel.
The general rule is that the successful party is entitled to his or her attorney’s cost on a party and party scale. Party and party costs is the costs for an attorney that is necessary and reasonable to let justice prevail and are prescribed by the Magistrate Court Rules and the High Court Rules.
Any alternatives?
Alternatives to litigation usually save time and expense:
Settlement: It is generally wise at the outset of any litigation proceeding to review the potential for an out-of-court settlement and is often a cost-effective alternative to trial. Indeed, most matters settle before reaching the trial stage. Settlement can be discussed by any party at any time during litigation.
Mediation: The parties may be able to negotiate a settlement without assistance from a third party, but it is common to involve a neutral person, known as a “mediator, to assist with settlement negotiations. The mediator has no authority to decide who wins.
Arbitration: The parties select a neutral third party, called an “arbitrator,” to resolve their dispute. In arbitration, the parties present evidence and argue the case to the arbitrator, who then decides which party wins.
In our view litigation is the last resort as it can be draining for clients from a financial and emotional perspective. However with our fresh insight combined with wisdom and experience we develop and execute winning strategies.