When to pull the trigger – litigation timing in focus

Choosing the right time to start a case is an important factor in litigation. Many people are unsure about when to take the step of starting a case or seeking legal advice. Sometimes it is challenging to know when to start a case.

Should you send by debtor another letter first? Is it worth suing over? Can you save money by waiting a bit longer or will it be harder if I wait?

While the process of litigation can generate a lot of value – a clear process, a timeframe, engagement by the parties and an opportunity to assert legal rights – getting benefit out of the process also involves a commitment of time and money.

Two important factors to consider in litigation

Firstly, if you are going to sue, by when do you have to do so? In many courts, commissions and tribunals there are clearly defined deadlines. After the timeframes are passed, in most instances you may no longer be able to start a case.

Secondly, subject to those limitation periods, when is the right time for you or your company to address the issue through litigation?

Strategy & Planning in Dispute Resolution & Litigation

If negotiations are progressing and everyone is genuinely working towards a resolution, it may be sensible to keep the negotiations going.

Your lawyer should be discussing and planning a clear strategy. You should know in advance what to provide for when documenting a settlement and what evidence needs to be collected in case it is needed later. This can be done as negotiations progress. Also, consider mediation with the help of an accredited mediator.

If the other party in a dispute is ignoring or avoiding the issue, it may help to have your lawyer send one detailed letter setting out your position, what is being sought and a clear deadline for a response. This should be a carefully worded and detailed letter providing a final chance to avoid litigation. If that does not engage the other party, it is unlikely that the matter will resolve without litigation. Futher delay and correspondence  is unlikely to change anything.

When should I start?

As a general rule, if the case is relatively simple, litigation does not get easier, cheaper or more effective the longer you wait. If the dispute involves a debt or specific amount, you may receive interest on the amount you recover from the time you start a case.

The longer you wait, the later that starts accruing. Also, while some costs incurred before the case can be recoverable, that is rare and it is usually much easier to recover costs incurred during the litigation than it is to get back amounts you spend before starting the case.

Where a case is complex, there may be considerable work you and your litigation lawyer need to do before starting a court or tribunal case. There may be detailed evidence to obtain, documents to prepare, witnesses to speak with and detailed advice to provide. In those cases, particularly involving larger amounts in dispute and technical issues, it can be easier to present a strong case if a lot of the preparation is done beforehand, including where expert opinions and other evidence may affect how your case will be run.

Generally, we find that clients often delay bringing a case for longer than is ideal. While we can still help, it may mean evidence is lost, witnesses become harder to contact, parties are less willing to resolve an ‘old’ dispute than one already on their minds and the costs are likely to be higher as more work needs to be done.

The key to success is to obtain legal advice early and to work with a lawyer to put in place a clear strategy. This will often involve planning for some negotiation, preparation for running a case and understanding very early what you are trying to achieve and how best to achieve that goal.

For expert advice and representation to help resolve your dispute, contact PCL Lawyers.

For more information about what a litigation lawyer does read more about the litigation process here.

About The Author - Roland Müller

Roland Müller is a Partner in our litigation practice area. He is a highly-experienced lawyer, an accredited specialist in commercial litigation and a nationally-accredited mediator. Equally...