By Ravi Nanga
IN the unfortunate event it becomes necessary to commence an action in court in order to seek a remedy, there are a number of steps that are required to be complied with before one can obtain a judgment.
While it is not absolutely necessary that you seek the advice of a lawyer, given the intricacies involved in prosecuting a claim, it is highly advisable that you do so, in order to ensure that you are properly advised and obtain the proper and appropriate remedy.
In the event you are unable to afford the services of a lawyer, depending on the level of your income you can access legal aid, where the Legal Aid and Advisory Authority will appoint a lawyer in order to represent you.
Once you have taken the decision to seek the advice of a lawyer, it is advisable that you prepare a statement of the issue that you are facing.
In so doing, the statement will assist you in being able to properly explain the circumstances of your matter and give the lawyer a picture of your situation in a precise manner. Depending on the nature of the matter, you may have to rely on documentary evidence. For example, in the event you have been injured, you should save receipts in respect of medical treatment that was sought and obtain a medical report. Therefore, you should provide copies of such documents to your lawyer.
After you have prepared your statement and compiled your documents, it is necessary to make an appointment to visit a lawyer’s office.
At the first meeting the lawyer will ask relevant questions in order to understand the nature of the problem that you are facing in order to get a full understanding of your situation.
The lawyer will also consider the documents that you have provided. Once the lawyer is properly advised and provided with the relevant documents, the lawyer will advise you of what cause of action you may have. In the event the lawyer requires further instructions or further documentation, he will advise you of what is required.
Once the lawyer is satisfied with the instructions that you have provided, the first step in commencing legal proceedings is to write a pre-action protocol letter to the proposed defendant. The Rules of Court provide for the writing of such a letter in order to notify a potential defendant early that a claim is being made against him.
This letter will set out in detail the nature of the claim that is being made as well as provide copies of relevant documents in support of the claim. This is done before filing proceedings in court in order to encourage the parties to identify the issues early and afford the parties the opportunity to resolve the matter.
In the event the matter is not settled at the pre-action stage, it will then be necessary to commence an action in court. This is done by filing a Claim Form and Statement of Case.
These documents, like the pre-action protocol letter, will contain the particulars of the claim that is being made.
The Claim Form contains a brief outline of the cause of action and the remedy that is being pursued.
The Statement of Case contains the details of matter and provides full particulars of why you claim you are entitled to a remedy.
The Rules of Court provide what is required to be contained in these documents.
In the event there is a failure to provide sufficient information in these documents, it is possible that the Claim Form and Statement of Case can be struck out. This is why it is advisable that you retain the services of a lawyer.
Once the Claim Form and Statement of Case are filed in court, the next step will be to serve the defendant with these documents.
Again, the Rules of Court provide the method by which particular defendants are to be served, depending on whether the defendant is an individual, a company or some other body. Once the defendant is served, he has eight days within which to enter an appearance indicating whether he intends to defend the matter or whether he admits the claim.
In the event the matter is being defended, the defendant will have 28 days within which to file his defence. In the event the defendant requires more time to file his defence, he can request an extension of up to three months from your lawyer, and if after such an extension more time is needed, the defendant can then apply to the court for further time within which to file his defence.
Should an appearance not be entered in time or a defence not be filed in time you will be entitled to judgment in default. However, such a judgment can be set aside.
Upon the filing of a defence, the court will then fix what is referred to as a Case Management Conference, where the matter will come on for hearing before an assigned judge.
This judge will be in charge of your matter from start to finish. At the Case Management Conference the judge will begin to manage the case and give directions towards fixing the trial of the matter, where evidence will be heard and a decision rendered.
The directions that can be given include the filing of reply, which is a document where your lawyer can respond to the defendant’s defence, the disclosure of documents that the parties will be relying upon and for the filing of witness statements, which will be a statement containing the parties’ version of the events in the matter. There are many other steps that can take place between the filing of an action and the eventual hearing of the matter at a trial.
Once all the preliminary matters are dealt with, and all the directions are complied with, the Judge will then fix a date for the trial, where you and the defendant will attend in order to support your respective positions as outlined in the claim and the defence.
It should be noted that in the event directions are not complied with, depending on the nature of the non-compliance, a claim can be struck out. At the trial the parties’ lawyers will have the opportunity to question the other party on the contents of their respective witness statements, which is referred to as cross-examination.
At the end of the hearing of the evidence, the lawyers will then address the Judge and explain why their respective clients’ cases ought to be believed. Once the judge has completed hearing the matter, he will consider all the material that has been placed before him, consider the evidence, the cross-examination as well as the submissions of the lawyers. The judge will then have to decide which version of the events are more probable, and once the law supports your case, you will be entitled to judgment. In the event your version of events is not accepted by the Judge, or the law does not support your claim, your matter will be dismissed.
This is a brief overview of the procedure involved in commencing and prosecuting a matter in court.
[Ravi Nanga is an attorney-at-law]
[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations]