The first advice to be offered to anyone considering taking legal action against someone else is ‘DON’T DO IT!’. Going to court should always be a last resort, and should only be considered when all other options have been exhausted. The court does not decide who is wrong and who is right. Rather, the court determines the law and them imposes its decision on both parties. It is not often that winners and losers emerge after a court case, as both parties usually feel like losers.
Our discussion on the taking of legal action will focus on the negative aspects of going to court. This is to ensure that the reader is left in no doubt about the seriousness and the risks associated with taking legal action. However, we do acknowledge that the taking of prompt legal action can sometimes be the most appropriate solution to an issue, and so we advise that legal advice should always be sought from a qualified legal practitioner before any firm decisions are made.
The role of the court
As stated above, it is not the role of the court to determine "who wins and who loses". The court determines what the law is, how it should be applied to the case before it, and then imposes its decision on both parties. Sometimes this results in one party feeling vindicated and satisfied, but often both parties feel badly let down.
Another way of looking at the situation is to consider an old joke about the legal system, which says, "The role of the court is to determine which party has the better lawyer." This emphasises the court’s focus on persuasive legal argument, rather than the plight of the individual.
The role of the lawyer
The role of the lawyer is to represent the client, and to present the client’s case to the court to the best of his or her ability. However, it is not the role of the lawyer to "win" the client’s case by any means available.
As far as the court is concerned, the lawyer has a duty to assist the court to come to the most appropriate decision. This means that the lawyer must present the client’s case as persuasively as possible, but it also means that the lawyer must not mislead the court, or allow the court to mislead itself. For example, if a lawyer is aware of two higher court decisions, one which favours her client and one which does not, the lawyer has a duty to inform the court of both cases so that the court can consider both of them.
The court may not award costs against the unsuccessful party
Sometimes the court will order an unsuccessful party to pay the costs of the successful party, but not always. The costs associated with taking someone to court should always be balanced against the possible outcome.
Principles are expensive
It may be more economical to put up with the problem, or to accept a loss than to take someone to court. Many people are concerned with "the principle" in the early stages of litigation. Comments, such as "We can’t let them get away with that!" or "It’s not so much the money, it’s the principle" indicate noble intentions, but noble intentions and principles are sometimes abandoned because of costs, particularly where the matter drags on and costs escalate beyond expectations.
Litigation lawyers have a saying, "If it’s a matter of principle have them pay the legal costs in advance."
Barristers are expensive
Legal practitioners do not normally appear in court on behalf of clients. Putting facts to a court, and arguing legal principles in relation to those facts is a task for a specialist, someone who appears in court regularly and keeps up to date with the mood of the court. The mood of the court can change according to a variety of factors, including public opinion, changes in the law, and the number of similar cases coming before it. For example, if the court perceives a trend in litigation involving the use of a legal loophole, it may find certain legal arguments less persuasive after a time. It is the role of the barrister to read such trends, and to advise the client appropriately.
Barristers are costly. First, there is the cost of obtaining advice from the barrister. It is common to submit a file or "brief" of information to a barrister, and then have the barrister provide written advice on the likely outcome of a court case based on the material provided. Depending on the level of experience and expertise of the barrister, the cost associated with obtaining this advice may start at $330 per hour (with a minimum of 3 hours), rising much higher for the most senior barristers (Senior Counsel or Queen’s Counsel – QCs).
Appearance costs for a barrister to attend court may start around $1,000 per day, plus an hourly rate for pre-court conferences.
Solicitors are expensive
On top of the barristers fees are the costs of having your solicitor prepare the brief for the barrister, and to attend to correspondence and administrative tasks associated with the running of a court action. For example, our hourly charge out rate for such matters is $220 per hour, (and this is regarded as being at the lower end of solicitor costs).
Time is expensive
Attending court usually means taking time off work. It may also require witnesses to take time of work. There is also a time commitment in terms of documents to be read, statements to be drafted, appointments and attendances for lodging and filing of documents. Few people are able to find the time to invest in a court action without having to forgo other important commitments.
Stress is expensive
The stress associated with court action is often overlooked by both sides of the matter. The excitement of believing that you are "in the right" can turn to disappointment and stress if the other party makes an offer that is less that what you want, but will affect your ability to claim costs. For example, you may claim that the other party should pay you $10,000, and they may offer you $5,000. If you refuse to accept the offer of $5,000 you risk the court making an order against you for costs, and this could result in your having to pay more in legal costs than you would receive if you are successful.
The stress associated with having to make difficult decisions, together with the anxieties associated with dealing with lawyers, witnesses and family members can take an enormous toll, affecting emotions and general health and well-being.
The purpose of this article is to provide some understanding of the problems associated with taking legal action. Sometimes the taking of legal action is necessary and highly advisable, but in most cases it is not.
In most cases the goal should be one of minimising loss, rather than maximising gain. This necessitates a careful consideration of all of the circumstances, including whether it will be more cost-effective to accept a comparatively small loss, rather than launching a lengthy and potentially expensive legal action for little or no long-term gain and the risk of defeat and an order to pay costs.