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Litigation

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

Litigation v mediation

Litigation can be distinguished from mediation, as in a litigation the judge or magistrate listen 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 complexity of the matter and the workload of the court. Matters have taken seven years and more in the past to be completed. It is with a view to reduce the length of time of matters before the court that the Civil Procedure Rules came into being. However, it is difficult to predict how long a matter will take in court. One of the parties in the matter might have need for adjournment because of unforeseen occurrences, such as illness. One of the parties could present an application for an interim remedy. Where an interim application is made the substantial issue will be postponed until the application is dealt with.

Importance of procedure

In litigation, procedure is very important and a person could have a legitimate case, but could fall short if that party did not comply with certain procedural requirement. CPR 2000 provides for relief from sanction, but if the application is not made that matter could fall through.

A servant not a master

In the case of Texan Management Limited et al v Pacific Electric Wire & Cable Company Limited, No 18 2009, Lord Collins in a Privy Council decision claimed that “in pursuit of justice procedure is a servant and not a master”. In the matte,r their Lordships claimed that 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, observant 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 could make an agreement to extend the period of 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 or settle the matter rather than litigating because of the rigours of litigation. You would have to make the decision for yourself, but you should get legal advice before you rush to the court. Depending on the matter, mediation, rather than litigation, could save you from some expenses.

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: exploringthelaw@yahoo.com

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