Deciding to sue should be given serious thought

The decision to sue is one that has to be given serious thought. One has to take into consideration several factors, namely, whether or not you have a good case; that is, the law is on your side; the length of time that it takes in court; whether you are able to stand up to the rigours of examination and cross-examination. Perhaps your primary concern should be whether you would have the cash to pay costs if you fail to win your case.{{more}} To recover money owing could be a straightforward issue, but to sue your employer for wrongful dismissal might not be straightforward for you, as the employer might very well win his case with costs. Sometimes claimants hope that they would win on a technicality, but it is a big risk and might mean financial ruin.

If time is of the essence

A matter could take a very long time in court. There are matters that have taken up to seven years in the High Court (civil). Then, if you have to go through your appeal the time could increase significantly. There are many factors that could come into play to delay your matter, including adjournments, interim applications, a busy court and long court list. After your claim form is served, the defendant has 14 days to acknowledge service for matters within the jurisdiction. The defence must be filed 28 days after service of the claim form. Case management conference must take place “not less than four and not more than eight weeks after the defence is filed”, unless some other factor comes into play. This means that there are about two to three months for these formalities. A date for the trial would be fixed in the case management conference. Civil Procedure rules (CPR 2000) aim, stated in the overriding objective, for matters to be dealt with expeditiously. Although there is no deadline, matters should not take as long as seven years.

Costs

The case of Williams v the National Bank of Dominica, No 8 of 2011 is instructive. The appellant, Williams, sued his former employer for wrongful dismissal. The appellant was employed on the basis of a contract for a period of three years, but was terminated after five months of employment. There was a termination clause in the contract which stated that it could be terminated for “reasonable cause or by no fault by either party,” with three months notice or three months salary. The bank terminated the services of the employee “without cause by no fault by either party” with three months salary. The court was asked to determine whether the “dismissal was in accordance with the contractual provision” and whether the claimant was entitled to damages because of breach of the contract.

The High court ruled against the claimant and awarded costs to the Bank under the prescribed rules pertaining to costs. The award was based on the amount that was claimed by the defendant. The amount sued for was $2,113,114. The costs that the defendant had to pay were calculated at $99,893.42. The defendant appealed the decision and again it came against him with additional costs for the appeal.

Mediation

Court cases are expensive and it might be feasible to opt for mediation. Mediation is an alternative method of settling disputes. A mediator, who is a neutral third party, directs the proceedings. The duty of the mediator is to guide the parties to work out a solution. The mediator allows the parties to discuss their matter and come to a decision. If a decision is not arrived at, the parties could always go back to court.

Ada Johnson is a

solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com