The term litigation refers to the process undertaken of handling disputes and bringing to court lawsuits that enforce a particular right. During the litigation process, the overseeing judge will make the final decision unless the parties can come to some settlement before the trial. At any time during the litigation process settlement can occur.
The litigation process is a formal process undertaken to resolve disputes in the court setting. This process allows one party to attempt to defend or enforce their legal right against another party. Litigation should not be confused with a lawsuit as a lawsuit it is only one part of a litigation process.
During the time of the Roman Empire, the first actual litigation took place. The legal system in Australia was slower to come into being. It developed from the British legal system as it was brought to Australia when Britain created the Australian colonies in 18th century. In the late nineteenth century, the British Parliament permitted each Australian colony to form a limited government. The setting up of government then enabled the colonies to develop their legal systems.
At the same time, there was an undertaking to create greater centralisation. Centralisation led to the six colonies coming together to create a constitution passed by the British Parliament, and this constitution came into effect on January 1st 1901. The creation of the constitution marked the commencement of Australia’s independent legal system.
Throughout the process of setting up the legal system and the ensuing years, litigation has been considered and due to constant consideration and revision it has become more sophisticated and complex as time has passed. In recent years Australia has seen a growing increase in the trend to litigate and go to court.
Dispute or Litigation
The terms dispute and litigation are often confused. What do these words mean?
Litigation means the process of resolving a dispute. The resolution can occur through court proceedings or a tribunal. In contrast, a dispute tends to be more informal, and disputes do not come before a judge to make a decision or final ruling. A dispute is generally resolved through mediation or arbitration, or alternative dispute resolution (ADR). Complainants can voluntarily enter into alternative dispute resolution or be required to do so due to a court order.
Mediation concentrates on two parties, aided by an impartial third party known as a mediator, who negotiates. The mediator facilitates the meeting between the parties. A mediator can be court-appointed or chosen and agreed upon by the parties involved.
An arbitrator, unlike a mediator, can make interim and final awards. When a dispute is referred to an impartial third party or more than one impartial third party, the arbitrator will determine the case’s outcome. The difference between arbitration and litigation is that the formal hearing and determination are managed in a private setting.
An expert determination is also similar to arbitration. In this case, the dispute is referred to an expert on the subject matter. This expert has experience and knowledge that assists them in the dispute negotiation process.
Types of Litigation
There are different types of litigation.
Civil Litigation: Civil litigation generally comes about due to disagreements or disputes between legal entities. Civil litigation refers to a legal dispute between parties who seek consequences that are not criminal sanctions. The most likely outcomes are financial or are made up of a court order that prescribes benefits favouring the litigations initiating party.
Business/Commercial Litigation: This type of litigation covers quite a broad area of law, including contract breaches, employment disputes, disputes around collecting debt, shareholder disagreements etc.
Criminal litigation: is where a charge is made against the Police or the Commonwealth, or a State.
Public Interest: These lawsuits are initiated by the courts and are put in place to protect the community’s well-being. Often this type of litigation is about environmental issues or public health concerns.
Under these more prominent names, there is an extensive range of litigation matters. Some more common types of litigation include:
a. Finance and banking disputes, insolvency, bankruptcy or financial restructuring.
b. Class actions.
c. Cybersecurity, protection of data and privacy issues.
d. Fraud and asset recovery.
e. Labour and employment disputes.
f. Disputes arising around environmental law.
g. Product liability in cases where there have been issues with medical or pharmaceutical devices or automotive issues.
h. Disagreement concerning intellectual property.
i. Real estate and property.
j. Professional negligence.
k. Mining, energy or insurance disputes or construction and engineering.
This list is undoubtedly a brief rather than a comprehensive list.
It is wise to be aware that litigation can be a complex and lengthy process. Due to the complex nature and length of the process, it will also be expensive.
The process generally starts with one party filing a claim or tabling a statement, or originating a process. Following this, it will be decided if they will hear the case in a court or by a tribunal. The proposed cause of action will decide this, and they will take relevant statutes into account along with monetary limits.
Litigation and The Law In Australia
Litigation rules vary throughout the world, and even within Australia it is a highly complex area. For this reason, it is advisable to seek professional advice and guidance if you are dealing with litigation. In Australia, the governing power is divided between a central government, the Federal Government and the individual state governments. Due to having respective state and territory governments, there is a separate jurisdiction for each within the court’s hierarchy. The Australian High Court is the highest court of appeals and acts as a body to unite the state and territory court hierarchies. There are some set divisions with regards to cases heard.
State and Territory Supreme Courts: Tend to hear monetary-based claims with a $750 00 or more threshold. The majority of states also have two lower court levels, and some have developed specialist courts with limited jurisdictions like the Environmental Court in NSW.
The Australian Federal Court: The Federal Court of Australia covers civil matters that come under Australia’s Federal Law. A single judge hears civil cases while appeals are heard before three federal court judges.
Commercial disputes can be dealt with through a combination of court litigation and ADR, which is alternative dispute resolution.
The Role Of A Litigation Lawyer
A litigation lawyer can also be known as a litigator. The litigation lawyer’s role is to provide expert advice to a client and represent and protect the client’s legal interests in the dispute. The litigation lawyer’s key role is:
a. to provide guidance concerning the most suitable strategies that will lead to resolution.
b. To effectively undertake litigation on the client’s behalf.
c. Advocate on behalf of the client for whatever is in the client’s best interests. They will do this in relations to how to plead, settlements, appeal proceedings and examinations.
A litigation lawyer can provide legal representation for the plaintiff or the defendant. Whoever they represent, the lawyer’s job is to initiate or respond to any claims and appear in interlocutory applications. An Interlocutory application is an application for the other party or the court to perform something before the trial. A litigation lawyer is their client advocate in court or at tribunals, negotiating, where possible, to avoid court proceedings and finally enforcing whatever judgement is made.
Finding A Litigation Lawyer
Choosing the right lawyer for your situation is imperative. It would be best to undertake some research to ensure the person you select is providing the service you require. To begin, ascertain into what area your litigation case fits. Is it civil, commercial or public interest? What type of litigation do you need? Once you have the answers to these questions, you will be able to undertake your research. The internet will provide you with considerable information about law firms and the areas in which they specialise. You may also be able to gain some knowledge from friends, family or work colleagues.
Some law firms now offer a free introductory consultation, so you may be able to use this to assess the lawyer’s experience and find out if they have the skills to suit your situation. You could also find out the potential costs of litigation.
There are many types of litigation, and some are considerably more complex than others. A result of this is the cost will vary widely depending on the case’s difficulty and nature. Legal fees are expensive, so it is wise to gain some information about the costs before proceeding.
There are two chief costs commonly involved in litigation.
1. Contractual costs – These are costs governed by the making of a contract. They include the legal fees set by the solicitor between themselves and the client.
2. Court ordered costs – These are costs that the court orders, which include financial compensation.
In recent times you will have seen advertised ‘No Win, No Fee agreements. These agreements are often offered to people who are unable to cover their legal fees. In these cases, the client only has to pay costs if the outcome is successful. The lawyer or firm then gets their professional costs paid out of the compensation paid plus an ‘uplift fee’. An uplift fee compensates the lawyer or firm for their risk in taking on the litigation without their usual retainer.
Many things are included in litigation costs, including filing fees, valuations, reports obtained from experts, application fees, barrister fees and the fees you pay the lawyer to prepare and present your case.
Litigation can be pretty tricky and cause considerable stress. Whether you are the originator or the respondent in a case, some things will help you. Firstly, take time to research and find the right lawyer for your case, making the process easier for you. Ensure you know your goals, gather evidence, and keep it safe and perform due diligence. If at all possible, consider a collaborative approach. Litigation is a way to resolve a dispute; however, there are other avenues you can consider.
Frequently Asked Questions
1. Can a litigation lawyer help you?
You will gain considerable benefit from obtaining a litigation lawyer as they will assist you in navigating the process. The matters can be confusing and the jargon complex. They can provide you with support, direction and representation.
2. What is pre-suit negotiation?
Pre-suit negotiations occur between the parties before a formal lawsuit. Through pre-suit litigation, lawyers work to see if they can settle without the cost and time required for a litigation process.
3. Is a litigator the same thing as a lawyer?
A litigator is sometimes called a trial lawyer or a litigation lawyer. A litigator is a lawyer who looks after the litigation process in civil cases.