Law - To sue or not to sue

By BHAG SINGH

It is best to seek advice on whether a claim should be challenged before pursuing litigation.

When there is disagreement and the differences cannot be resolved amicably, one party is likely to threaten and possibly sue the other. Or the parties may even sue one another. At the end of the day, one party will succeed and the other will fail.

The party that fails will have to meet the successful party’s claims and pay costs as well as bear its own costs. The successful party will feel vindicated for pursuing the litigation.

However, there are instances when even though a party succeeds with judgment given in its favour, it may feel that the victory is meaningless. This is because the costs, both in terms of money and time involved, could turn out to be a loss after all as only nominal compensation or damages are awarded.

In other cases, the costs awarded may be a fraction of what the party has paid to its own solicitors. Or it could be that a substantial amount has been awarded but the other party may be insolvent.

When this happens, the successful litigant may well ask itself whether it should have pursued the litigation after all. Should its solicitors not have advised against instituting or continuing the litigation?

Approach to litigation

This leads to the basic question of how litigation should be viewed and approached. The general trend is for an aggrieved party to see solicitors and tell them that it wants to sue another.

A solicitor acts on the basis of instructions given. Where a party asks solicitors to act, the solicitors are merely following instructions. On the other hand, the party sued is likely to take the stand that since it is being sued, it wants to instruct its solicitors to defend the action.

The matter then proceeds and ends with either victory or defeat, depending on the facts and the law applicable, and sometimes even technicalities. When either party is unsuccessful, it begins to ask itself what went wrong with the process it had embarked upon?

In the context of such a situation, hindsight would suggest a more practical approach. The first step for a party to take is to seek advice on whether the claim should be pursued or challenged.

If and when such an approach is taken, a party would be in a better position to take a more suitable stand. If a party is aware of its own weakness, a compromise would be in the best interest of all.

Assessment

Such an approach is only possible where a party is open to advice before taking a particular approach. This requires solicitors to be provided with a complete narrative of what has happened, including difficulties encountered, as well as all relevant documents.

This would enable the solicitors to look into the matter on a comprehensive basis, including the documents and evidence involved, so that they can provide an assessment of the strength and weaknesses of the case, whether from the plaintiff’s or defendant’s point of view.

Unfortunately, litigants and those who are drawn into litigation tend to feel that it is too troublesome to provide the solicitors with all the evidence and documents at the outset. Most would paint a nice picture of their claim or denial with a request to commence or defend proceedings.

Some litigants are obsessed with speed in filing documents in court. A solicitor who wants to obtain more information and fully look into all aspects can sometimes be viewed as slow or not aggressive enough. This can turn out to be very costly to the litigant.

Merits irrelevant

There are instances when a party wants to file an action irrespective of any of the above considerations. Such a party may have resources to pursue litigation and bear the consequences.

This happens when the decision to litigate, whether by commencing an action or pursuing a defence, is done by considering not just the financial aspect alone.

The right to sue and defend in the courts is the alternative of force. In an organised society, it is the right conservative of all other rights, and lies at the foundation of orderly government, according to William Henry in Chamber vs Baltimore & Ohio.

This right to litigate is referred by Isabella Beeton in The Book of Household Management in which the author says: “We hear of those to whom a lawsuit is an agreeable relaxation, a gentle excitement. One of this class, when remonstrated with, retorted that while one friend kept dogs, and another horses, he, as he had a right to do, kept a lawyer, and no one had a right to dispute his taste”.

Other considerations

There are situations in which litigation has to be relied on in the context of broader considerations. Thus a claim for a small amount may be pursued even though the cost of doing so is more than the sum claimed.

In the case of a businessman or trader, it may be done to signal to his customers who are numerous but owing small amounts, that they cannot get away from meeting their obligations merely because the amount involved is small or costly for him.

Sometimes there is a collateral purpose in commencing an action. One example is in which the media is publishing stories perceived to be defamatory. The person who considers himself defamed may file an action and sometimes apply for an injunction. However, even in cases in which no injunction is sought, there is the effect in some cases of the subject matter not being written on anymore or having a slowdown effect.

Whatever the purpose, it is useful for a litigant to appreciate the intricacies involved and to be well-advised before commencing an action. Whether the litigation is futile or not is a matter that depends on what is involved – the objective of the litigant.