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Litigation

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The word litigation is often used to describe the proceeding that is brought in a court of law (civil) between two or more parties to settle a dispute. The parties involved are referred to generally as the litigants. In the Civil Court since CPR 2000, the parties have been called specifically claimant and defendant, but prior to this they were the plaintiff and the defendant.{{more}} The words plaintiff and defendant are still used in the Magistrate’s Court in its civil jurisdiction. In matters pertaining to divorce, the parties are referred to as the petitioner and the respondent with the petitioner being the person who initiates the divorce and the respondent being the person who answers to it. Litigation is centred over the “claim” that is initiated by the claimant. Before this, it was called a “suit”, and the word lawsuit was used to describe the process.

Litigation v mediation

Litigation can be distinguished from mediation, as in a litigation, the judge or magistrate listens to the evidence and in the end makes a decision in favour of one party. On the other hand, in mediation, the parties come to a decision under the guidance of a mediator.

Matters affecting litigation

Litigation can be a very tedious process and matters could stretch out for many years, depending on the complicity of the matter and the workload of the court. There are matters that have taken seven or more years to be completed. It is with a view to reducing the length of time of matters before the court that the Civil Procedure Rules (CPR 2000) were created. But one can never predict the time that a case would take in court. One of the several persons in the matter might have the need for adjournment because of unforeseen occurrences such as illness. One of the parties could present an application requiring an interim remedy. Where an interim application is made, the substantial issue is postponed until the application is dealt with.

Importance of procedure

In litigation, procedure is very important and a person could have a strong case but could fail if one of the parties did not comply with certain procedural requirements. CPR 2000 provides for relief from sanction, but if the application is not made then the matter could fail.

A servant not a master

In the case of Texan Management Limited et al v Pacific Electric Wire & Cable Company Limited, No. 18 of 2009, Lord Collins in a Privy Council decision claims that in pursuit of justice, procedure is a servant and not a master. In that matter, their Lordships claim the Court of Appeal was wrong to find that because no evidence was filed with the application, there had not been a valid application. There was a minor procedural defect in not serving the evidence with the application and the judge properly exercised her discretion to excuse it. Nonetheless, observance of time is very important, and if a party fails to file a defence at a particular time that matter could be struck out. The parties may make an agreement to extend the period for filing a defence. Not more than two agreements could be made by the parties to extend the time, and the time may not be extended for more than 56 days.

Some persons prefer to make an agreement rather than litigating because of the rigours of litigation. You would have to make the decision for yourself, but you should get some advice before you rush to court. Depending on the matter, some persons would suggest mediation instead of litigation.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: [email protected]

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